Dugan v. Haige

• Decision Date: 07 September 1951
• Citation: 54 So.2d 201
• Parties: DUGAN et ux. v. HAIGE et al.
• Court: Florida Supreme Court

Page 201

54 So.2d 201

DUGAN et ux. v. HAIGE et al.

Supreme Court of Florida, en Banc.

Sept. 7, 1951.

H. A. Kooman, St. Petersburg, for appellants.

Ed W. Harris, St. Petersburg, for appellees.

ROBERTS, Justice.

The principal question here presented is whether the lower court abused its discretion in relieving the lessees, the appellees here, from the consequences of their failure to comply strictly with the provisions relating to the renewal thereof. The lease was for a term of ten years, and provided that 'If the Lessee desires to exercise its option to renew the lease for said period of five years, it shall give written notice to the Lessor of such intent at least thirty days prior to the expiration of said ten year lease.' The lease expired on June 1, 1950; thus, the notice of renewal was due on May 1, 1950, but the lessees failed to give to the lessors, the appellants here, such notice until May 19, 1950, which was two days after the lessors had given them notice to surrender the possession of the property on June 1, 1950.

The Chancellor, who heard the testimony, found as a matter of fact that the lessors had actual notice of the lessees' intention to extend the lease; that the lessors had not been harmed or damaged by the lessees' delay in giving the written notice; and that the equities were with the lessees. He thereupon decreed that the lease be deemed extended for the five-year period contemplated by the lease.

There is ample testimony to support the findings of fact of the Chancellor. It also appears that the reason for the lessees' failure to give the written notice was because the only copy of the lease agreement in their or their attorney's possession set forth a fifteen-year term.

We think that, under the circumstances here present, the Chancellor did not abuse his discretion in granting relief, under the rule stated in 32 Am.Jur., Landlord and Tenant, Section 981, page 824, that 'Equity will relieve against the consequences of a failure to give notice which is a condition precedent to the renewal of a lease when such failure results from accident, fraud, surprise, or mistake, and there are other special circumstances which may warrant a court of equity in granting relief against the consequences of the lessee's failure to notify the lessor, within the stipulated time, of an intention to exercise the privilege of renewal.'

The question presented by the appellees, on their cross assignment of error, has been considered, and no error has been found.

For the reasons stated, the final decree appealed from should be and it is hereby.

Affirmed.

SEBRING, C. J., and TERRELL, CHAPMAN and ADAMS, JJ., concur.

PARKS, Associate Justice, dissents.

HOBSON, J., not participating.

PARKS, Associate Justice (dissenting).

The question for determination is whether plaintiffs' evidence, accepted in its most favorable light, bring them within the protective shelter of equity found in the rationale of the hardship and special circumstances cases to secure relief from the consequences of their failure to give the written notice within the time prescribed by the lease. The Circuit Court found in the affirmative.

The general use of this clause or one of similar nature in leases has been long established. They are common to leases where provision is made for additional terms to that specified. The subject is of such general interest, it is believed, to warrant this expression of views.

On April 10, 1940 Haige Bros., Inc., a corporation and the Dugans entered into a preliminary memorandum agreement for a lease of the premises. This agreement, in brief, provided for a term of 15 years, fixed the amount of rent to be paid, authorized the Haiges generally to install Fixtures, improvements, etc. and stipulated that all attached fixtures or improvements should not be removed at the termination of the lease. In pursuance of the memorandum, on May 10 following, the parties executed a formal lease with many of the usual covenants found in leases of commercial property. Instead of the term of 15 years called for by the memorandum, the parties saw fit to substitute a term of 10 years beginning June 1, 1940, with the option, however, to renew for an additional term of k years, if Haige so desired, and providing that in the event of the exercise of the option 'it shall give written notice to the (Dugans) of such intent at least 30 days prior to the expiration of said 10 year lease.' It was further provided that if default be made in any of the covenants or agreements in the lease the Dugans had the right, without notice, to declare the term ended and to re-enter and repossess the premises.

Possession was taken June 1 and Haige, in due course, finished the installation of certain improvements and fixtures in the building adaptable to the operation of a cafeteria. Acoustic ceilings, mahagony paneling and mirrors in the walls, some flooring in the dining room, one or more lavatories with tile floors, and a sprinkling system were installed. In 'the following years' the kitchen floor was tiled. No further improvements were made during the 10 year period of 1940-1950.

In February, 1941, the lease was assigned by Haige Bros., Inc. to the four plaintiffs, Haiges.

The controversy was precipitated by the failure of the Haiges to give the prescribed written notice more than 30 days prior to May 31, 1950, the end of the 10 year term. It was not given until the receipt of a letter from Dugan's lawyer on May 17...