Bluthenthal v. Atkinson

• Decision Date: 10 January 1910
• Parties: BLUTHENTHAL v. ATKINSON
• Court: Arkansas Supreme Court

124 S.W. 510

93 Ark. 252

BLUTHENTHAL v. ATKINSON

Supreme Court of Arkansas

January 10, 1910

Appeal from Jefferson Circuit Court; Antonio B. Grace, Judge affirmed.

STATEMENT BY THE COURT.

Appellant entered into a lease contract with appellee's intestate on August 1, 1903, for a certain brick store building on Main Street in Pine Bluff, Arkansas, to continue for five years ending September 1, 1908. This contract provided that the lessee might renew the lease for five years upon the same terms and conditions, "but the said lessee shall give the said lessor sixty days' notice if he so desires to occupy said building."

The provision of sixty days' notice required the lessee to give notice not later than July 1, 1908, in order to be in time. The term of the lease expired. The lessee failed to give the notice, and the appellees demanded possession of the premises, which was refused, and appellees brought this suit to recover same and damages in the sum of $ 1,050.

Appellant answered, admitting possession, but denying that he held without right. He set up the lease contract between himself and appellee's intestate, and alleged that he had faithfully paid the rent and complied with every requirement of the contract save as to the payment of rent not then due which he tendered in court.

Appellant also for equitable defense set up "that on June 26 1908, he wrote a letter to appellee, Mrs. J. C. Atkinson stamped same with 2-cent postage, and deposited it in the United States mails at Pine Bluff; that in due course of mail the same would have reached and been delivered to appellee on the same afternoon or the morning following, and appellant in writing and mailing said letter honestly believed that same would be duly delivered; that thereafter appellant met the same appellee on the street, and, under the firm impression that said notice had been received, he advised with appellee concerning certain improvements to be made by him on said building which were not to be begun until after October, 1908, and the appellee at that time did not advise appellant that he had never notified her of his intention to retain possession after September 1, and consequently would have no right to make improvements after that date.

"Appellant paid rent promptly and continued in possession of the property after September 1, 1908, with the intention to retain said property during the additional term, nor was he advised that appellee claimed the contract at an end until after she had refused to accept the rent for the month of September, at which time she first stated that appellant had failed to avail himself of the extension option. Appellant immediately advised appellee that he had given notice of his intention to remain in possession of said property at the time above referred to, and at the same time gave additional notice to her that he would remain in possession under the lease contract, tendering her the moneys due for rentals of the property under said contract, which she declined.

"Appellant states that he honestly intended to remain in possession of said building during said additional term, and intended to give notice of such intention, and that, if said letter so mailed by him to appellant was not received by her in the usual course of mail, it was an unavoidable accident and a surprise to him.

"Appellant further states that he was unable to discover the fact that said letter had not been received by appellee by the use of reasonable diligence, because he says that the envelope in which said notice was mailed bore on its left hand corner a request that the same be returned to appellant, if not delivered within five days, and appellant charges that, notwithstanding said request, the envelope and notice were never returned to him, and, but for unavoidable accident, if the letter had not been delivered, the same should have been returned to appellant; that the appellees, believing that appellant intended to remain in said building for said additional term, did not attempt to lease nor have they leased the same to any other person, and they have in no wise been damaged on account of a failure to receive such notice, but that, if it be determined that appellees were damaged by failure to receive such notice, he offers and tenders into court all moneys that may be due them for damages as a result of the unavoidable accidents as aforesaid. He prays that the lease be by the court declared to be in force for five years from September 1, 1908, and that, upon the payment of the rental specified therein, he be permitted to occupy said building, under the terms of said lease, and that, inasmuch as this answer raises issues strictly cognizable in a court of equity, he prays that the cause be transferred to the Jefferson Chancery Court for final determination."

The court refused over appellant's objection to transfer the cause to the chancery court. The court instructed the jury that the notice required by the contract must have been actually received by the lessor, that the burden was on appellant to show that he had given the notice, that no particular form of notice was required, nor was it necessary to have same served by an officer; that any communication, verbal or written, actually delivered to plaintiff in due time, would be sufficient.

The court submitted to the jury on the evidence adduced the question as to whether appellees received the notice in due time, and on this subject instructed the jury as follows:

"If you find from a preponderance of the evidence that on the 25th day of June, 1908, the plaintiff was residing in Pine Bluff, Arkansas, and that on that day the defendant wrote a letter to plaintiff notifying her of his intention and desire to claim the benefit of his option and renew the lease for another term of five years, enclosed the same in an envelope, addressed it to plaintiff at the city of Pine Bluff, Arkansas, placed thereon the necessary postage stamps and mailed it to her in said city, then the law presumes that it was delivered to her in due course of time, and the burden is on the plaintiff to show by a preponderance of evidence that she did not receive it."

The court further instructed the jury that: "By the terms of the contract the option was with the defendant to renew the lease or not as he might elect. If he elected to renew it, he was bound to give notice of such intention within the time specified. The plaintiff was not required to do anything in the matter, and had a right to remain silent regarding it, if she chose."

The court refused prayers by appellant telling the jury in effect that if appellant mailed a letter notifying appellees that he would avail himself of his option to extend the lease under the contract, and that such letter in due course of mail would have reached the lessors before July 1, 1908, this would be sufficient to constitute the giving of the notice required, notwithstanding any testimony on the part of appellees to the effect that such letter and notice were not received.

The court also rejected prayers of appellant seeking to have questions of estoppel and waiver, under the evidence, submitted to the jury. Objections were made and exceptions reserved to the rulings of the court on the declarations of law. There was a verdict in favor of appellees for $ 1,040.50. Judgment was entered for that sum, and this appeal seeks to reverse the judgment. Other facts stated in opinion.

Judgment affirmed.

White & Alexander and Ben J. Altheimer, for appellant.

To relieve against mistakes and accidents is one of the principal objects and most important duties of courts of equity. 25 Ark. 373. A letter properly directed and mailed will be presumed to have reached its destination. 111 U.S. 193; 2 H. Blk. 509; 16 M. & W. 124; 1 H. L. Cas. 381; 3 Watts 321; 2 Zabr. 190; 53 Pa.St. 289; 61 N.Y. 362; 105 Mass. 391. Equity will relieve against accidents and mistakes. 59 Am. Rep. 742; 10 Wis. 123; 42 Ind. 212; 69 L. R. A. 833, 29 Vt. 378. Failure to comply with conditions requiring notice of an intention to renew will be relieved against in equity if the party has acted fairly, and no injury was done to the other by failure to give the notice within the time limited. 42 Ind. 212; 12 Abb. Cas. 50; 26 O. Cir. 16. Posting notice in due time, properly directed, is sufficient. 1 Pick. 401; 10 Pet. 574.

Crawford & Hooker, for appellees.

If a lease expressly requires a notice of lessee's intention to renew, such notice must be given. 18 A. & Eng. Ency. Law p. 692; Story on Eq. Jur., § 105. The notice required was a condition precedent. Bish. Eq., § 175; Jones on Landlord and Tenant, § 342. Notice is knowledge or information. 43 Conn. 53; 81 Ala. 140; 1 So. 773; 131 Cal. 582; 63 P. 915; 1 Dak. 387. The lessee must give...