Lead Opinion

GARDNER, J.

[1] The plaintiff in this action (appellee here) relies for recovery upon what is referred to as a lease contract appearing in the form of a letter, as shown in the foregoing statement of the case. The term of the lease was so long as the house remains upon the land described, which is of course a most indefinite period. There is no provision for any periodical payment of rent, as no rent was charged. If this instrument, therefore, is to be construed as a lease, *325 then it is so uncertain and indefinite as to its terms as to create a tenancy at will between the parties under the decision of Hunnicut v. Head, 179 Ala. 567, 60 South. 831, and authorities there cited. See, also, 24 Cyc. 1038.

[2] The only remaining question is whether' the proof suffices to show that such a tenancy has been terminated. The actual possession of the seed house has all along been in Lammon Bros., the owners of the fee. The proof shows that the house was erected in furtherance of the contractual relation existing between the parties for the purchase of cotton seed, and this relation had terminated, and the defendant given sufficient notice to the plaintiff that it could no longer occupy the space upon which the house was located. Cook v. Cook, 28 Ala. 660. If it be contended that the contract is still in force because of the fact that the house has not been removed from the land, such contention is fully met by the proof, which, practically without dispute, discloses that the defendants offered, not only to let the plaintiff move the house, but to themselves move it for the plaintiff. If any such condition was therefore necessary,. this would suffice to establish a complete waiver thereof. See 24 Cyc. 1334-1338. Such, therefore, being the relation between the parties, and the tenancy at will having terminated, the plaintiff was not entitled to recover, and the court below erred in the judgment rendered.

We find nothing in any of the provisions of section 4732, Code 1907, which, under the circumstances here disclosed and the contract here involved, in our opinion, at all militates against the conclusion here reached. The judgment will therefore be reversed, and one here rendered in favor of the defendant.

Reversed and rendered.

ANDERSON, C. J., and SAYRE, SOMERVILLE, THOMAS, and BROWN, JJ., concur. McCLELLAN, J., concurs in result.

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Concurrence Opinion

McCLELLAN, J.

(concurring). The writing signed by Lammon Brothers, set out in the statement of the case, is, in my opinion, without binding force, because no consideration was shown as passing to the owner of the land upon which the building was constructed, before or at the time this agreement was attempted to be made. Indeed, it affirmatively appears that the house was constructed many months before this writing was executed, and no rent was provided for •or reserved. To support a lease as a contract there must be some consideration, express or implied; and none is shown in this instance. Taylor’s Landlord & Tenant (9th Ed.), § 152.

With respect to the view expressed in the majority opinion, viz., that the relation between these parties was that of a tenancy at will, I am unable to reconcile that view with these very plain provisions of Code, § 4732: “Where no time is specified for the termination of a tenancy, the law construes it to be for the calendar year. * * * ” If the expression in the writing referred to, viz., “so long as it [the building] remains thereon,” is not read as a reference to the duration of the tenancy, the writing does not' specify the duration of the tenancy and, hence, subjects the relation to the effect of the law as quoted from Code, § 4732.

Upon these considerations, I concur in the reversal and rendition of the judgment.