Chalkley v. Ward, 44252

• Decision Date: 21 February 1969
• Docket Number: No. 44252,No. 2,44252,2
• Citation: 166 S.E.2d 748,119 Ga.App. 227
• Parties: Ruth CHALKLEY v. Stanley WARD
• Court: Georgia Court of Appeals

Page 748

166 S.E.2d 748

119 Ga.App. 227

Ruth CHALKLEY v. Stanley WARD.

No. 44252.

Court of Appeals of Georgia, Division No. 2.

Feb. 21, 1969.

Syllabus by the Court

1. While the words 'renew' and 'extend' as applied to or used in a lease connote different meanings, when both terms are used in the contract we must look to the whole contract; if there has been a period during which the lessee has been in possession under the lease we look to the conduct of the parties as an aid in determining what the intention of the parties was as to whether they had provided for a renewal or an extension option.

2. (a) Where the contract provides that the lessee shall give notice by December 1 of each year, to the lessor of his intention to extend the term, but without giving of the notice by the lessee the lessor has accepted the lessee's notes for the annual rentals for four consecutive years, has permitted the lessee to remain in possession during that time and both parties have observed all other terms of the lease, there has been a temporary mutual departure from the provision requiring notice; if the lessor desires to require it the lessee must be given notice that thenceforth strict adherence to the terms of the lease will be required.

(b) Acceptance by the lessor of rent from the lessee after his breach of a provision requiring written notice of intention to extend the lease amounts to an admission by the lessor of a continuance of the lease and a waiver of any prior forfeiture.

3. The effect of a lease granting to the lessee a term for one year with an option to extend it annually during the life estate of the lessor is to grant a term for the duration of the remainder of the life estate, absolute for the first year and optional with the lessee for the future continuance thereof under the terms and conditions of the contract.

4. Enumerations of error complaining of portions of the charge to the jury generally present no question for consideration by this court when it appears that no exceptions to these portions were made to the trial court before verdict. This is particularly true when it does not appear that the portions were error as a matter of law.

5, 6. Colloquies of the court with counsel relative to the legal effect of certain action by a party, or questions directed by the court to a witness on the stand do not afford the basis for the grant of a new trial when there was no objection thereto made in the trial court at the time and no motion for mistrial made.

7. Contracts, even when ambiguous, are to be construed by the court and no jury question is presented unless after application of applicable rules of construction the ambiguity remains.

Mrs. Chalkley, owner of a life estate in certain lands, executed to Ward a lease of the land for the year 1962 at a rental of $400 and which provided that the term might be extended annually during the life estate by the giving of written notice and the execution of a note for the rental by December 1 of the preceding year. ¹ Extensions were permitted for four years without the giving of the written notice, notes for the annual rental being given as required by the lease and paid each time. Then, prior to December 1, 1966 Mrs. Chalkley notified Ward in writing that by reason of his failure to comply with the terms of the lease, it had terminated, and she demanded possession at the end of the year. Instead, Ward gave written notice to her of his intention to extend the lease for another year and executed a note for 1967 rental, delivered it prior to December 1, and refused to vacate the premises. Dispossessory proceedings were instituted against him and on trial thereof the jury returned a verdict for the defendant. Judgment was entered on the verdict. A motion for new trial on the general grounds was made and overruled and Mrs. Chalkley appeals, enumerating as error the overruling of the motion, the judgment on the verdict and several antecedent rulings.

Ernest C. Britton, Columbus, Brooks Culpepper, Talbotton, for appellant.

John A. Smith, Talbotton, for appellee.

EBERHARDT, Judge.

1. The language used in this lease providing that the lessee is given the option to 'renew and extend' it by the giving of written notice to the lessor 'of such renewal,' that it shall be 'renewed annually in this same manner,' and that the rentals for all 'renewals or extensions' under the option shall be payable on the same date of each year of such 'renewal or extension' is inexact, for 'renewal' contemplates the execution of a new contract, whereas 'extension' does not. Citizens Oil Co. v. Head, 201 Ga. 542(2), 40 S.E.2d 559. And see Walker v. Brooks Simmons Co., 44 Ga.App. 470, 161 S.E. 659.

If this lease provides for a renewal-the obtaining of a new contract each year-the position of the lessor that the lessee's failure to obtain one resulted in his occupying the status of a tenant at will would appear to be correct, whereas if an extension is what the contract provides for we would, for reasons which will appear, conclude that his status continued to be that of a lessee each year. What, then, does the language 'renew or extend' as used here mean? What is its effect?

A lease contract is construed against the lessor, unless it was prepared by or its terms were dictated by the lessee. Felder v. Oldham, 199 Ga. 820, 826, 35 S.E.2d 497, 164 A.L.R. 415; Farm Supply Co. of Albany v. Cook, 116 Ga.App. 814, 159 S.E.2d 128. Though the contract here was reached by negotiation between the parties and drafted by an attorney who represented both of them, the lessor was in position to negotiate from a position of strength and this would favor a construction of the agreement as one to extend the time or term rather than of an agreement to execute a new contract each year.

In Hamby & Toomer v. Georgia Iron & Coal Company, 127 Ga. 792, 801, 56 S.E. 1033, 1036, the court was faced with a similar problem where the lease provided: "The terms of this contract is two years from and including April 1, 1904, and the privilege is hereby granted by the parties of the first part and expressly reserved unto the parties of the second part of renewing and extending this contract for a period of three years from, after, and including the 1st day of April, 1906." Concerning this the court held: 'It becomes necessary to determine the question of whether this stipulation is such as to provide for a renewal of the lease, or a mere extension of the time first stipulated in the lease. The consequences which would flow from the construction that it provides for a renewal would be different from those which would flow from construing it as providing for a mere extension. If the stipulation contemplates a new contract at the expiration of the two years, then it would be a renewal, and the execution of a new lease would be indispensable. In this contingency it would be incumbent upon the lessee to notify the lessor, before the term expired, that he had exercised his option to take a new lease. On the other hand, if the stipulation is to be construed as merely an extension of the time under the old lease, and no new arrangement was contemplated, then, no notice being expressly provided for in the contract, if the lessee merely remained in possession by virtue of the contract after the expiration of the two years, this would bind both the lessee and the lessor to an extension for the additional time stipulated in the lease, and no further notice would be required. * * * The stipulation in question uses both the words 'renew' and 'extend,' but, when it is construed as a whole, it is manifest that it was intended merely to extend the time upon all the terms and conditions stated in the lease. While the words 'renew' and 'extend' do not always mean the same thing, still, in interpreting a stipulation of the character above referred to, the context must be considered, and the intent of the parties must be arrived at, and this may, under certain circumstances, require that these words shall be given a similar meaning.' To the same effect see Scruggs v. Purvis, 218 Ga. 40, 126 S.E.2d 208. And see Felder v. Oldham, 199 Ga. 820, 826, 35 S.E.2d 497, 164 A.L.R. 415, supra.

Notice was not specifically provided for in Hamby or in Scruggs, but this lease does provide that if the lessee is to exercise his option to 'renew and extend' he must give written notice of his intention to do so and execute a new note for the rental before December 1 of each year. Does this require that we reach a different conclusion than was reached in Hamby and Scruggs? It would unless we can conclude that the lessor has waived the notice provision or that she is estopped from relying on it. She permitted the lessee to give his note for the rental, to continue in occupancy and pay the taxes on the land for the years 1963, 1964, 1965 and 1966. When the note became due it was paid each time and she accepted the money. All of this was without See Saunders v. Sasser, 86 Ga.App. lessee that he was exercising the option. It does not provide for any new terms or renegotiation of terms in 'renewing or extending.' See Saunders v. Assser, 86 Ga.App. 499(1b), 71 S.E.2d 709; Pritchett v. King, 56 Ga.App. 788(3), 194 S.E. 44.

The construction placed upon the lease, as evidenced by the conduct of the parties, is to be considered. Asa G. Candler, Inc. v. Georgia Theater Co., 148 Ga. 188(5), 96 S.E. 226. Does the conduct of the parties here indicate a construction of the lease by them that it provided for an extension rather than a renewal of the old lease? It does. The tenant was permitted to give his note for the rental, as called for by the old lease, on December 1 of 1962, 1963, 1964 and 1965, to occupy and use the lands in the same manner as had been done during the original term, to execute his note for the annual rental the payment of which lessor has accepted, to pay the taxes as had been done for the original term-all without the execution...