143 Me. 190 | Me. | 1948
Opinion.
Appeal by the defendant from the final decree of a single justice in equity sustaining a bill brought by the plaintiff, and decreeing that the lease between the plaintiff and the defendant had been renewed and was in full force and effect. On plaintiff’s motion and petition for temporary injunction the court on an ex parte hearing granted a restraining order against the defendant interfering with the plaintiff in the harvesting of the 1946 crop of blueberries on certain land located in New Sharon, Franklin county, upon the filing of a $5,000 bond. Bond was filed and the restraining order duly issued. The plaintiff thereafter harvested the crop of blueberries, but not until after the defendant had harvested a part of the crop before the restraining order was served on him, and after he, the defendant, had made a contract to sell the crop to another purchaser. Upon the service of the restraining order the defendant did not harvest or attempt to harvest any more of the crop, but abided by the restraining order.
It is admitted that the plaintiff did not exercise its option to renew by giving the thirty days’ notice in writing, and from a careful perusal of the testimony no express notice in any form, either written or oral, .was ever given by the plaintiff to the defendant before the expiration of the first five-year period. Whatever business was done in connection with the lease was transacted through Emma York, the wife of the defendant, as his agent.
The plaintiff bases its grounds for equitable relief (1) on the allegation that in September 1944, just prior to the 20th of. that month, a certain conversation took place between Mr. Theodore Bird, treasurer, and Mr. Henry Bird, president, of the plaintiff corporation, on the one hand, and Emma York, acting in her capacity as agent of her husband. Mr. Theodore Bird testified as follows to the conver
(2) Between September 20, 1944 and January 1, 1945, the plaintiff spent $762.54 in preparing the ground for the 1946 crop. (3) In January, April and May 1945 the plaintiff expended $96.10 in preparation of the land for the 1946 crop. It is claimed by the plaintiff, as a crop is har
The plaintiff claims that written notice for the renewal or extension of the lease was waived by the defendant and the lease was extended by acts of the parties, under the testimony as above set forth. The party claiming a waiver must, of course, prove the facts on which he relies for such waiver, and the intention to waive. Knickerbocker Life Ins. Co. v. Norton, 96 U. S. 234; 24 L. Ed. 689; Dougherty et al. v. Thomas, 313 Pa. 287; 169 A. 219; Hurley v. Farnsworth, 107 Me. 306; 78 A. 291. The decision as to matters of fact of a single justice sitting in a case in equity should not be reversed unless it clearly appears that such decision is erroneous. The burden to show the error falls upon the appellant. Brickley v. Leonard, 129 Me. 94-97; 149 A. 833; Lutick v. Sileika, 137 Me, 30; 14 A. (2nd) 706.
Notice of the exercise of the option is for the benefit of the lessor, but lessor may waive 'an express provision for notice. Donovan Motor Car Co. v. Niles, 246 Mass. 106; 140 N. E. 304; Wood et al. v. Edison Electric Illuminating Co., 184 Mass. 523; 69 N. E. 364; Khourie Bros. v. Jonakin, 300 S. W. 612; Ketchum v. Oil Field Supply Co., 99 Okl. 201; 226 P. 93; McCann v. Bass, 117 Me. 548; 105 A. 13. Where the lessee has the right of renewal “Provided he gives notice at or before a specified time to the lessor of his inten
Since thirty days’ written notice was a condition precedent to effect an extension of the lease, and was never given as provided for, the right to an extension of the lease was lost. Pope v. Goethe, 175 S. C. 394; 179 S. E. 319; 99 A. L. E. 1005; Fountain Co. v. Stern, 97 Conn. 618; 118 A. 47; 27 A. L. R. 927. The plaintiff has no right of relief unless it can establish a waiver of the condition, or such acts as will bring it within the power of equity to relieve, and this it claims to have done. The plaintiff bases its claim of waiver upon the disputed conversations of September 1944, and the fact that it expended money between September 1944 and January 1945, and between January 1945 and May 1945 in preparing the land for the 1946 crop. The lease was in full force at the time the acts relied upon by the plaintiff occurred. After the last labor was performed upon the leased property in May 1945 it does not appear from the testimony that any negotiations or talk took place between the parties, nor was an entry made upon the property by the plaintiff, until some time in the spring of 1946, several months after the lease, as defendant claimed, had terminated. At the time the plaintiff entered for the purpose of dusting the blueberry bushes it was forbidden by the defendant to proceed with the work because the defendant claimed the lease was terminated by the failure of the plaintiff to give the written notice.
Waiver is a voluntary, intentional relinquishment of a known right. It may be shown by words or acts, and may arise from inference from all the attendant acts as well as from express manifestations of purpose. Whether there
The conversations relied upon by the plaintiff to show a waiver did not relate to the option for renewal of the lease or its extension, but simply pointed out to the plaintiff the manner in which it could obtain reimbursement under the lease. The defendant did not waive the required notice. There was no casual relationship between these conversations and the failure of the plaintiff to exercise the option, without which the plaintiff could not successfully invoke the principle of waiver or estoppel. The plaintiff was not unaware of the risk of not giving the required notice. There is nothing in the testimony indicative of any mutual intention to waive the exercise of the option. There is nothing in the evidence that appears to have been done by the defendant, of a malicious, wrongful or deceptive nature to induce the plaintiff not to exercise the option. The defendant had changed his position after the plaintiff failed to give the required notice. There was no “Clear, unequivocal and decisive act” of the defendant showing an intention to
The giving of the written notice was a condition precedent to an extension of the lease for an additional term of five years. Time was of the essence of the option. The parties made it so in the lease. Pope v. Goethe, supra; Donovan Motor Car Co. v. Niles, supra. The condition not having been performed within the time prescribed, and not having been waived, equity cannot aid the lessee to avoid the natural and reasonable consequences of its own negligence, to which the lessor in no way contributed. Goldberg Corporation v. Goldberg Realty & Invest. Co., 134 N. J. Eq. 415; 36 A. (2nd) 122; Rogers v. Saunders, 16 Me. 92 at 97; 33 Am. Dec. 635; Jones v. Robbins, 29 Me. 351 at 353; 50 Am. Dec. 593.
The evidence, considered in the light most favorable to the plaintiff, does not as a matter of law entitle the plaintiff to the relief granted by the decree. The decree appealed from is not supported by the evidence.
Appeal sustained.
Decree below reversed.
Case remanded for a decree in accordance with this finding.