Dubois v. Gentry
| Decision Date | 06 January 1945 |
| Citation | 184 S.W.2d 369,182 Tenn. 103 |
| Parties | DUBOIS et al. v. GENTRY et ux. |
| Court | Tennessee Supreme Court |
Error to Circuit Court, Putnam County; R. W. Smartt, Judge.
Suit by J. B. Dubois and others against L. W. Gentry and wife for a declaratory judgment as to right to terminate a lease contract. To review a judgment of the Court of Appeals for plaintiffs on appeal in error to the Circuit Court defendants bring certiorari.
Affirmed.
E. H. Boyd, of Cookeville, and H. B. McGinness, of Carthage, for appellants.
W. P Flatt, of Cookeville, for appellees.
This suit originated in the Circuit Court of Putnam County by DuBois filing a petition for a declaratory judgment as to his, or their, right to terminate a lease contract. The plaintiffs had leased a filling station in the town of Cookeville from the defendants, agreeing to pay as a consideration the sum of $60 per month. Following the execution of this lease they took possession and operated it for approximately two years. It appears from the petition and the evidence that plaintiffs had considerable difficulty in subleasing the place and in operating it themselves, due to gasoline and tire rationing and inability to employ servants to carry on the work. It was contended that all available local labor had gone into war plants where the wage paid was excessively high and that for this reason plaintiffs were unable to secure employees to operate the place. The lease contract is filed as a part of the record. The pertinent part of the contract upon which plaintiff relies provides:
'Lessee's Right of Termination: Should Lessee, for any reason other than (a) any wilful act of Lessee and/or (b) damage or destruction of the premises and/or any structure thereon, be prevented from establishing or continuing the business of distributing petroleum products on said premises; Lessee may terminate this lease upon giving thirty (30) days' written notice to Lessor, in which event the rental obligation shall be prorated to the date of such termination.'
The plaintiffs gave the written notice and averred in the declaration that through no fault of their own they were unable to operate the business. The defendants denied that the plaintiffs had any right under the terms of the contract to terminate the lease. The trial judge held that the petition was proper as a suit for a declaratory judgment. The petition was sustained, not upon its averments as herein set forth, but because the defendants had failed to return the plaintiffs the keys within a reasonable time and had thereby tacitly recognized their right to terminate the contract.
The defendants prayed an appeal to the Court of Appeals and assigned errors which called for a proper construction of the lease contract and especially of the paragraph that is referred to in this opinion relating to the right of the lessee to terminate the contract. The Court of Appeals held that the act of plaintiff in terminating the contract was authorized and in that regard reversed the trial court. We granted certiorari and the case has been orally argued by counsel. The defendants, Gentry and wife, have assigned as error the action of the Court of Appeals in sustaining plaintiffs' right to terminate the lease contract.
We think the judgment of the Court is correct and should be affirmed. The following finding of fact by the Court is fully sustained by the record:
In 147 A.L.R. p. 1274, it is said:
'Generally speaking, the Courts have declined to relieve tenants from the obligations of their commercial leases because of the fact that the volume of business transacted has been curtailed as a result of the Federal rationing laws.'
We think the weight of authority supports the general rule that in the absence of any stipulation giving the lessee, under certain contingencies, the right to terminate the lease, he has no such right.
In Bryan v. Spurgin, 37 Tenn. 681, 685, 686, it was held that 'if the performance of a contract becomes impossible by contingencies which should have been foreseen and provided against in the contract, the non-performance will not be excused.' Citing cases. It cannot be doubted however, that the parties to a lease...
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...40 Mich. 322, 29 Am.Rep. 530; Starin v. U. S., 31 Ct.Cl. 65.' (Pp. 49-495.) The same rationale was employed in Dubois et al. v. Gentry et ux. (1945) 182 Tenn. 103, 184 S.W.2d 369, where a lessee was given a right to terminate upon notice 'for any reason' other than his wilful act or damage ......
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...courts are without power to make another and different contract from the one executed by the parties themselves. Dubois v. Gentry, 182 Tenn. 103, 184 S.W.2d 369, 371 (1945); see alsoBob Pearsall Motors, Inc. v. Regal Chrysler-Plymouth, Inc., 521 S.W.2d 578, 580 (Tenn. 1975) ("The courts, of......
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