Edwards v. Bernstein

• Decision Date: 15 October 1929
• Parties: EDWARDS v. BERNSTEIN.
• Court: Kentucky Court of Appeals

21 S.W.2d 133

231 Ky. 100

EDWARDS v. BERNSTEIN.

Court of Appeals of Kentucky

October 15, 1929

Appeal from Circuit Court, Logan County.

Suit under Declaratory Judgment Act by Henry B. Edwards against J Bernstein. From a judgment dismissing the petition, plaintiff appeals. Reversed and remanded, with directions.

Coleman Taylor, of Russellville, and S. Y. Trimble, of Hopkinsville for appellant.

Wesley V. Perry, of Russellville, and G. Duncan Milliken, of Bowling Green, for appellee.

HOBSON C.

On January 30, 1920, J. Bernstein leased to Henry B. Edwards a storehouse in Russellville, Ky. for five years for the monthly rental of $125. It was provided in the lease that Edwards had the option to renew it for a further term of five years at the same rental. The lease then contained these two clauses:

"The lessee is hereby given the option on said building at the end of said ten (10) years; that is to say, the right to renew said contract for an additional period of ten (10) years, at a rent to be agreed upon between the parties hereto, provided said Bernstein desires to rent the same."

"It is further stipulation of this lease that the said lessee is hereby given the right and option to purchase the above-described premises at any time the lessor desires to sell the same at the expiration of the term of this lease or any renewal hereof, at a sum to be agreed upon between said parties, and the terms thereof to be so agreed; that is to say, that he shall have the refusal to purchase the same at any time the said Bernstein desires to sell the same."

Edwards held the property for 10 years, and there was no trouble between them. In 1928 some correspondence was had between them in regard to the additional 10-year term, beginning January 20, 1930. Bernstein wanted to rent the property, but thought that a rent of $200 a month was reasonable, Edwards wanted to keep the property, but thought $100 a month was a reasonable rental. They were unable to agree, and on April 29, 1929, Edwards brought this suit against Bernstein under the Declaratory Judgment Act, praying a declaration of his rights under the lease, and that a reasonable rental be fixed and determined, and that the contract be specifically enforced for such reasonable rental. Bernstein lived in Lexington, Ky. The process was served on him in Fayette county. He appeared and filed a special plea to the jurisdiction of the court. This was overruled. On final hearing the court adjudged that the action was prematurely brought. The defendant's demurrer to the petition was sustained. The petition was dismissed. Edwards appeals.

The first question to be determined on the appeal is: Was the action properly brought in the Logan circuit court? Section 62 of the Civil Code of Practice provides that an action for the recovery of real property, or of an estate or interest therein, may be brought in the county in which the land lies. But the only thing in controversy here is a...