105 So. 513 | Miss. | 1925
"State of Mississippi, Winston County:
"This contract was made and entered into and between J.B. and M.J. Parkes, parties of the first part, and W.B. Palmer, party of the second part, witnesseth: That the said parties of the first part hereby rents or leases *304 unto the said party of the second part, the barber shop building situated on the south side of Main street in the town of Louisville, Winston county, Miss., and bounded on the east side by the Fair Company grocery store, and on the west by the J.S. Carr grocery store and now occupied by the said W.B. Palmer, for a period of (5) five years beginning August the 1st, 1919, and running to August the 1st, 1924, for the sum of ($30) thirty dollars per month payable monthly on the first of each month during the entire term of five years for which lease is granted. Further, the said J.B. and M.J. Parkes, parties of the first part, agrees to give the said W.B. Palmer, party of the second part, an option of (5) five years on the above stated building at the expiration of the above lease.
"In witness hereof we hereunto subscribe our names this the 11th day of August, 1919.
"J.B. M.J. PARKES. "W.B. PALMER."
The lease was not acknowledged nor recorded. Following this there were some intervening assignments of the lease, which it is unnecessary to set out in order to present the questions involved in the case. Finally, J.M. Howell conveyed to appellant a one-half interest in the lease in question, and this assignment was filed for record in January, 1924.
On March 15, 1920, the said J.B. Parkes and M.J. Parkes conveyed the leased property by deed to D.L. Fair, Claude Fair, and Frank Fair, who composed the Fair Company, appellees herein, and the question involved in this lawsuit is whether or not the Fair Company are entitled to the possession of the building involved as against the appellant, who claims that he exercised the option to renew or extend the lease for five years after its expiration, August 1, 1924, as provided in the lease.
The lower court held that the Fair Company was entitled to the possession of the property upon the *305 expiration of the lease, August 1, 1924, because, first, that the Fair Company was an innocent purchaser of the building without notice of the option to renew the lease at its expiration, and that the Fair Company had no notice of the intent to exercise the option to renew the lease by the appellant; and, second, that there was no notice in writing by the optionee that he intended to renew or extend the lease after its expiration.
The record discloses without dispute that at the time the appellee Fair Company purchased the property the appellant was in possession of it under the lease. The Fair Company also knew before the expiration of the lease that the appellant was holding the property under the lease, but the Fair Company did not know the lease contained an option for an extension or renewal of it for five years, but they had knowledge that appellant was in possession of the property under the lease. The Fair Company under these circumstances made no inquiry of appellant as to the terms of his lease, and it is inferable that if inquiry had been made the option to renew in the contract would have been disclosed to the Fair Company.
Under this state of facts we think the possession of the property was notice to the Fair Company sufficient to put them upon inquiry as to the terms of the lease by which appellant held possession of the property, and, having failed to make inquiry, it is our opinion the Fair Company was charged with notice of the terms of the lease, which included the option given appellant to renew or extend for five years after August 1, 1924. Kirby v.Bank of Carrollton,
On the second proposition, as to whether the appellant gave written notice that he intended to exercise the option to renew or extend the lease at its expiration, we find from the record that written notice in the form of a letter was given by appellant, in which he advised the appellees that he desired to extend the lease at its expiration. This notice was a written letter, and the appellee, Fair Company, testified that they received it *306 about a month before the expiration of the lease, and that it adequately informed them that the optionee desired an extension or renewal of his contract of lease on the building. We think this was a sufficient written notice of the intention of the appellant to accept or exercise the option to renew or extend the lease, if indeed express notice was required at all, and it follows that by such notice the right to hold accrued to appellant.
Much is said by counsel pro and con as to whether the lease here involved was one of renewal or one of extension, and whether express notice was required in either event, and whether or not remaining in possession by the tenant was sufficient notice under this form of contract of lease. The Crenshaw-Gary Lbr. Co. v.Norton,
It is also contended by the appellees that the letter giving the notice of intention to renew the lease was not introduced in the record, and therefore the testimony of appellees that they received the letter and that it gave them notice of the intention to renew is insufficient to constitute a written notice of the intention to renew under the option in the contract. This view is not sound, in our opinion, because the testimony showing that notice in writing was given and received by letter was admitted before the court without objection, and therefore it is not to be excluded, but is to be considered for what it is worth, and, as we have said, the testimony of appellees shows that the letter was a sufficient notice of the intent to renew the lease.
The intent of the parties is to be considered in determining the meaning of the option in the contract, and we think the option in the lease before us was one for a renewal *307 for five years on the same terms as the existing lease. The language used in the lease is not perfectly plain in this construction, but, taking the instrument as a whole, we feel justified in the conclusion that the parties intended that the option be one of renewal for five years upon the same terms.
There are other questions, some of which are wholly without merit, presented in the case, but we think it is unnecessary to consider them, because the views reached above must result in a reversal of the judgment of the lower court and a rendition of judgment for appellant here. Therefore the judgment of the lower court is reversed, and judgment entered here for appellant.
Reversed, and judgment here for appellant.
