Brown v. Parish

• Decision Date: 03 December 1924
• Docket Number: 2117
• Citation: 1 La.App. 246
• Court: Court of Appeal of Louisiana — District of US
• Parties: J. P. BROWN v. N. K. PARISH, Appellant

1 La.App. 246

J. P. BROWN v. N. K. PARISH, Appellant

No. 2117

Court of Appeals of Louisiana, Second Circuit

December 3, 1924

Rehearing Refused January 22, 1925.

Appeal from the First District Court, Parish of Caddo, Hon. J. H Stephens, Judge.

This is a suit to eject tenant from leased premises.

Judgment for plaintiff and defendant appealed.

Judgment affirmed.

W. M Phillips & T. Overton Brooks of Shreveport, attorneys for plaintiff and appellee.

Slattery & Slattery of Shreveport, attorneys for defendant and appellant.

OPINION

ODOM, J.

Plaintiff is the owner of certain property in the city of Shreveport, known as 2916 Gilbert St. In the month of April, 1922, he leased his property to one C. M. Anthony, under written contract which reads, in so far as it is necessary to quote the same as follows: "For the sum of One Hundred Dollars per month, payable in advance each month, beginning March 6, 1922, and extending one year from then, the said Brown does hereby lease to the said party of the second part (C. M. Antony) that said portion of the building now occupied by said business, and said party of the second part accepts said lease on said terms, it being agreed that he may have said lease renewed at the end of his lease on same terms and at same price per month for another year, and again and again, to cover five years from March 6, 1922--but it is agreed that said party of the second part shall not sub-lease any part of said property without the written consent of said J. P. Brown."

On January 10, 1924, the owner of the property, J. P. Brown, filed this suit, setting up the fact that he had leased the property to C. M. Antony, under the above quoted contract and he alleges "that at the end of the year said lease was not renewed for an additional year, as required by the terms of said contract, and that since said date said Antony has been a tenant from month to month."

And he further alleges that in the latter part of the year 1923, said Antony sold his business to N. K. Parrish, and that since said date said Parrish has been suffered to remain in said premises and pay rent as a tenant from month to month, and that on Dec. 15, 1923, he notified said Parrish to vacate said premises at the end of the month beginning Dec. 6 and ending Jan. 6th, 1924, and that notwithstanding said notice to vacate said tenant has refused to do so and still occupies the property.

In paragraphs 6-7-8 & 9 of his petition plaintiff sets up as an alternative plea, in case the court should hold that the lease was renewed at the end of the first year, that Antony, the original lessee, breached the contract by sub-leasing to one H. L. King a portion of the premises without his written consent.

However, his plea has been abandoned and plaintiff rests his case on the sole ground that the lease was not renewed at the end of the first year.

Plaintiff prays that a rule issue to the said N. K. Parrish, ordering him to show cause why he should not be ejected from said premises and ordered to re-deliver the same to him, and that upon trial there be judgment, "ejecting said Parrish from said premises and to pay all costs of this suit and rent on said premises at the rate of One Hundred Dollars per month from January 6, 1924, to such date as such premises may be re-possessed by the plaintiff herein."

Defendant filed answer in which he admitted plaintiff's ownership of the property, admitted that the property was leased to C. M. Antony, as alleged, admitted that in the latter part of the year 1923 he had acquired the interest of said Antony in the business, and admitted that on Dec. 15, 1923, the plaintiff notified him to vacate the premises. But he especially denies paragraph 3 of the plaintiff's petition in which it is alleged that the lease was not renewed. And further answering, he sets up that prior to the time he purchased the business from Antony, which was in the latter part of the year 1923, several months after the expiration of the one-year lease, "he was told by the said Antony that the property was leased for a period of five years from March 6, 1922, at a monthly rental of One Hundred Dollars, that he then called on said Brown, to have this statement verified, he not knowing that said lease was in writing or any of its terms otherwise than as disclosed by the said Anthony, and the said Brown told him that the property was leased for a term of five years, that your defendant, acting on the statement of said Brown, lessor, purchased the said business", and he sets out that the fact that the lease was in a desirable neighborhood and for a term of years was a material consideration of said purchase and that he "would not have otherwise bought it and the fixtures," and that the said Brown "with full knowledge of the facts above mentioned, and yet leading your defendant to believe that he was taking over the business as it stood and having told him that the property was under lease for five years from March 6, 1922, is now estopped to claim that said lease had been forfeited and its terms violated and having further held out to you defendant that said property was under lease for five years, is now estopped to deny this fact, which estoppel in both instances as above alleged is especially pleaded in for of plaintiff's rights herein." And he further pleads in answer that in as much as plaintiff knew that he, defendant, was under the impression that the property was under a five-year lease, that it was plaintiff's duty, in all fairness, to disclose to him, defendant, that said Antony had not renewed it and that plaintiff should have advised defendant to renew the lease, if indeed it had not been renewed by Antony.

There was judgment in the lower court ordering the defendant ejected from the premises without reference to the amount then due or to become due. The defendant appealed. Plaintiff has not answered the appeal and asked that it be amended. We must assume that he has abandoned the claim for rent due.

Plaintiff sets out in his petition that Antony, the original lessee, had sub-leased a portion of premises, thereby violating the express provision of the contract "that said party of the second part shall not sub-lease any part of said property without the written consent of the said J. P. Brown."

But this plea has been abandoned, as it was not well founded, the proof, indeed, the admission of plaintiff found in the record, showing that plaintiff had given his consent in writing to the transfer of the lease by Antony, to Parrish, so that plaintiff's sole ground for recovering now is that the lease was not renewed at the end of the first year, as the contract provided that it might be.

The court must, therefore, determine whether as a matter of fact the lease was renewed at the end of one year for an additional year, and if not, then whether plaintiff has estopped himself to deny the existence of the lease for the full period of five years, as is contended by defendant.

On the question of renewal of the lease, the plaintiff as a witness in his own behalf, swears positively that there was no renewal. He says he did not discuss the renewal of it with Antony, or any one else, either before or after the expiration of the first year. He says that in the month of January, 1923, Mr. Parrish, defendant, went to him to hire him, but that the lease was not mentioned.

He was asked on cross-examination if after giving Mr. Parrish notice to vacate, he did not go to the store and have a conversation, with Parrish, about the lease, in the presence of Mrs. Parrish.

He answered that he did go to the store for the purpose of buying them out and 'Mrs. Parish said they had a four-year lease and I says 'no, you have not,' so that was all that was said."

He says, however, that he did make a statement to Mr. Antony that there was a five-year lease on the property, that is, that it could be renewed from year to year for five years. This statement to Antony, he says, was made about the time he gave Antony permission to transfer the lease to Parrish, which was, according to the admission in the record, on Jan. 10, 1923. Such a statement could not affect the contract for two reasons--first, Antony was the lessee and signed the lease contract and of course was familiar with its terms, and, second, the statement was made on or about Jan. 10, 1923, practically two months prior to the expiration of the first year.

Mr. Antony, was not called as a witness by either the plaintiff or defendant.

Defendant called one H. L. King, as a witness, King testified that he had occupied a portion of premises, as a tenant since August 1922. He says that Brown, the plaintiff was frequently in his place of business and that about two or three months ago (the case was tried on Jan. 17, 1924, so that...