Vinyard v. Republic Iron & Steel Co.
87 So. 552
Ala.
1921
Check Treatment
SOMERVILLE, J.

[1] The trial of this cause in the circuit court on appeal was, under our statute, de novo. Code, §§ 4280, 4720; Littleton v. Clayton, 77 Ala. 571. This means that, subject only to a restriction of the claim to an amount or value within the jurisdiction of the justice court (Giddens v. Bolling, 92 Ala. 586, 9 South. 274), the trial is had as though the suit originated in the circuit court (L. & N. R. R. Co. v. Lancaster, 121 Ala. 471, 473, 25 South. 733); and a new complaint oí an amendment to the old, may be filed by the plaintiff, provided it does not exhibit an entire change of parties plaintiff or defendant, and does not show a departure from, or change in, the original form of action (So. Exp. Co. v. Boullemet, 100 Ala. 275, 13 South. 941; Lagerfelt v. McKie, 100 Ala. 430, 14 South. 281; Littleton v. Clayton, 77 Ala. 571; Smith v. E. T. V. & G. R. R. Co., 98 Ala. 154, 13 South, 7; Swanson v. Brown, 160 Ala. 432, 49 South. 675).

[2] The trial court properly allowed the amendment claiming attorney’s fees in each of the trial courts, and rent to the time of the trial, the aggregate amount of which was less than $100. These claims were not based *273 upon a new or different cause of action, but were for elements of damage growing out of the original unlawful detainer. When damage is not in itself the cause of action, but is the consequence of a completed breach or wrong, it is proper to_ estimate and award damages therefor, if duly claimed and proven, down to the time of the verdict. Davis v. Ayres, 9 Ala. 292; Fowler v. Armour, 24 Ala. 194; Fay v. Guynon, 131 Mass. 31, 35; Frey v. Cudahy Packing Co. (D. C.) 243 Fed. 205; Sturm v. Cons. Coal Co., 248 Ill. 20, 93 N. E. 345, 21 Ann. Cas. 99; Cosgriff v. Miller, 10 Wyo. 190, 68 Pac. 206, 98 Am. St. Rep. 977; 17 Corp. Jur. 1085, § 395.

[3] By not claiming an attorney’s fee for prosecuting the suit in the municipal court, plaintiff did not waive his right to make such a claim on appeal, if he deemed it worth the while. Neither party is thus restricted, and it has been held that the defendant may, on appeal, on a trial de novo, interpose any defense deemed meritorious, though not originally pleaded, except a plea in abatement. Davis Wagon Co. v. Cannon, 129 Ala. 301, 304, 29 South. 841.

[4] It is contended that these several claims, though their payment is stipulated for in the lease contract as liquidated damages, are in fact mere penalties, rendering the contract void in toto, or void at least as to the stipulations in question. It is the settled doctrine of this court that a stipulation for the payment of a reasonable attorney’s fee, if the obligee in a contract should employ an attorney to enforce or defend his rights thereunder by reason of the obligor’s breach, is not in the nature of a penalty. Wood v. Winship Mach. Co., 83 Ala. 424, 3 South. 757, 3 Am. St. Rep. 754.

“And so, too, it is competent for the contracting parties not only to stipulate for a reasonable attorney’s fee to be paid by the maker of a note in the event of the collection after default by an attorney, but to fix the amount of the reasonableness of sueh fee [italics supplied]. This proposition is clearly recognized in the cases of Wood & Bros. v. Winship Mach. Co., 83 Ala. 424, and Ledbetter v. Vinton, 108 Ala. 644.” Stephenson v. Allison, 123 Ala. 439, 450, 26 South. 290, 293.

The clear holding of those cases is that, where the partiés themselves fix the amount of the fee to be paid, it will be presumed, at least prima facie, that it is reasonable in amount, arid that the 'appearance of counsel of record for the obligee establishes the liability of the obligor to pay the fee as a matter of law, without proof thereof. The trial court properly included in the judgment the amounts claimed as attorney’s fees, as ascertained and shown by the contract of lease.

[5] With respect to the damages allowed for the period of the unlawful detention, on the basis of treble the rent contracted for during lawful occupation by defendant, the contention that the stipulation for damages thus to be estimated must be regarded as a stipulation for a penalty rather than for liquidated damages, cannot be fairly sustained, in view of the terms of the contract and the expressed purpose and understanding of the parties in making it. Our decisions have dealt quite fully with the question of liquidated damages or penalty, as determined by contract stipulation and just principles of construction, and it is not necessary to do more than to merely refer to a few of the leading cases, viz.: Keeble v. Keeble, 85 Ala. 552, 5 South. 149; Henderson v. Murphree, 109 Ala. 556, 20 South. 45; Cleveland C. & C. Co. v. Am. C. I. Pipe Co., 168 Ala. 250, 53 South. 313; Walshe Mfg. Co. v. Smith Lbr. Co., 178 Ala. 472, 59 South. 455; Id., 196 Ala. 371, 72 South. 73; George v. Roberts, 186 Ala. 521, 65 South. 345.

If the lease here in question were one of the ordinary kind, where the purpose is merely to give to the lessee the use of the property, and to the lessor the agreed value of its use, exchanging the one for the other, without ulterior considerations, there would be much force in appellant’s contention that the payment of treble, rent was intended, and in fact operates, as a penalty, since the ordinary rental value is susceptible of easy and accurate estimation. But, the contract itself contradicts this theory, and shows that the house was owned and used by plaintiff in connection with its mining operations, and was intended for occupation by employees, and was leased to this defendant because of his relation to the company as such, and, further, that the reasonable rental value, if leased independently, would in fact be treble the amount exacted from this employee, and that in case of its unlawful detention apart from such use the lessor would suffer great and special loss.

It was competent for these parties to contract upon such an agreement and such an understanding. The intention to protect the lessor against the peculiar and noncalculable injury to its general business which would ordinarily result from the diversion of its miners’ houses from their appropriate uses, and the propriety and fairness of that intention, are, we think, too clear for serious controversy. The amount stipulated must therefore be held, as the parties intended it to be, for liquidated damages, and not for a penalty, and the sum awarded in that behalf cannot be pronounced excessive. The case of Walker v. Engler, 30 Mo. 130, is directly in point, and its reasoning is clear and convincing.

[6] The written lease was duly executed by the defendant, who is “the party to be charged,” and it was binding upon him, though not executed for the lessor by any person “thereunto lawfully authorized in writing.” Code, § 4289; Heflin v. Milton, 69 Ala. 354; Oliver v. Ala. Gold Life Ins. Co., 82 Ala. 417, 2 South. 445; Davis v. Rob *274 ert, 89 Ala. 402, 405, 8 South. 114, 18 Am. St. Rep. 126; Lagerfelt v. McKie, 100 Ala. 430, 14 South. 281. Such contracts are not lacking in mutuality and validity, though they be unilateral as to their enforceability.

[7] Moreover, if it be conceded that this lease was by its terms for more than a year, so as to bring it within the fifth subdivision of the statute of frauds, yet the delivery of possession by the lessor or his agent, and the payment of rent by the lessee, removed the contract from the influence of the statute. Shakespeare v. Alba, 76 Ala. 351; Jones v. Gainer, 157 Ala. 218, 47 South. 142, 131 Am. St. Rep. 52; Elliott v. Bankston, 159 Ala. 462, 49 South. 76.

[8] There is no merit in the contention that this contract was void because it gave to the lessor alone the right to terminate the lease at his pleasure, and withheld that right from the lessee. Parties may make such contracts if they choose, and the right of the lessee to occupy and enjoy the premises, though subject to such an interruption, is a consideration of value and will support the agreement. Such contracts have been universally upheld. 24 Cyc. 1339, par. 2; 16 R. C. L. 1108, par. 625; Id. 1111, par. 628; 2 Taylor’s Land. & Ten. (9th Ed.) 56, par. 471; Ann. Cas. 1916B, p. 306, note.

[9] The notice given by the lessor to the lessee of its election to terminate the lease was appropriate in form and substance, and in accordance with the terms of the contract, which provided for “one day’s written notice to vacate said premises, either given to the lessee in person, or by leaving a copy of said notice upon said premises.” Under the clear and explicit terms of the contract, this notice was effectual to terminate the lease on the day specified for the lessee’s vacation of the premises, though that day was not the beginning or end of a period for which a rent installment was due.

[10] As observed by the editor of Annotated Gases:

“Frequently the option to terminate a lease is granted with the intention of its being exercised at the end of a specified interval of tenancy, such as a monthly, quarterly, or a yearly, interval, and when such intention is manifest the option must, of course, be exercised in relation thereto.” Pacific Warehouse Co. v. McKenzie, etc., Co., Ann. Cas. 1916B, note p. 313, citing, among other cases, Baker v. Adams, 5 Cush. (Mass.) 99, relied upon by counsel for appellant.

But that rule is founded upon the intention of the parties, expressed or implied, and cannot be applied in derogation of their intention to the contrary, as shown by a number of cases cited by the editor of the note referred to, including the case of May v. Rice, 108 Mass. 152, 11 Am. Rep. 328, wherein is found an excellent discussion of the subject.

In the lease before us, the implication that the parties intended that the termination of the lease after one day’s notice should synchronize with the end of a monthly rental period is not only rebutted by the provision itself and the general tenor of the contract, but it is in fact rendered impossible by the further provision that upon such termination — ■

“the lessee shall only be liable for the rent to the date of the termination, and if rent has been collected beyond that date it shall be refunded to the lessee upon his demand, provided he vacates according to said written notice, and by failing to vacate he agrees to forfeit said rent.”

[11] The statutory demand for possession (Code, § 4263) was in due form and was effectually served by leaving the original paper “upon the rented premises,” as authorized by the statute.

[12,13] The exaction of $7 a month, instead of $6, for the April and May Installments of rent, was impliedly consented to by the tenant, and must therefore he regarded as a voluntary modification of that provision’ of the lease— a modification which they could properly and validly make without affecting other provisions and obligations. Hertz v. Montgomery Journal, 9 Ala. App. 178, 62 South. 565. Moreover, as suggested by counsel for appellee, even if not assented to by the lessee, the overcharge was in no sense a repudiation of the lease, and at most gave to the lessee a right to claim its restitution in some proper way.

We have given thorough consideration to all of the questions argued by counsel, and our conclusion is that the judgment of the trial court is not infected with error, and must be affirmed.

Affirmed.

All the Justices concur, except MILLER, J., not sitting.