Feidelson v. Piggly Wiggly Alabama Co., Inc., 6 Div. 587.

• Decision Date: 20 March 1930
• Docket Number: 6 Div. 587.
• Citation: Feidelson v. Piggly Wiggly Alabama Co., Inc., 127 So. 516, 221 Ala. 81 (Ala. 1930)
• Parties: FEIDELSON v. PIGGLY WIGGLY ALABAMA CO., INC.
• Court: Alabama Supreme Court

127 So. 516

221 Ala. 81

FEIDELSON v. PIGGLY WIGGLY ALABAMA CO., INC.

6 Div. 587.

Supreme Court of Alabama

March 20, 1930

Rehearing Denied April 17, 1930.

Appeal from Circuit Court, Jefferson County; Joe C. Hail, Judge.

Action for rents by D. T. Feidelson against the Piggly Wiggly Alabama Company, Inc. Plaintiff takes a nonsuit and appeals from adverse rulings on pleading. Transferred from Court of Appeals.

Reversed and remanded.

Ewing Trawick & Clark and Louis Silberman, all of Birmingham, for appellant.

Wm. S Prichard and John D. Higgins, both of Birmingham, for appellee.

SAYRE J.

This action was brought to recover rent of certain described premises for the months of October and November, 1927. Construing the lease in writing exhibited with the complaint the court sustained defendant's demurrer, whereupon plaintiff suffered a nonsuit and appeals, as provided by section 6431 of the Code.

The result turns upon the proper construction and effect of the written contract of lease by and between plaintiff's assignor and defendant corporation of July 3, 1922, by which the lessee, defendant, appellee, took the premises for a term of five years beginning October 1, 1922, and ending September 30, 1927. The lease contained the following option: "In the event the lessee does not desire to renew this lease upon the expiration thereof, lessee shall notify the lessor, in writing, at least six months prior to the termination thereof; if, six months prior to the date of termination, no such written notice shall have been given lessor by lessee, this lease shall be deemed to have been extended for a period of five years at the option of the lessor, subject to all of the terms, conditions and covenants. The right of renewal of this lease and all of its terms, conditions and covenants are hereby given the lessee for a period of five years, provided that such right of renewal is exercised prior to the termination of this lease."

The allegation of count H, which may be accepted as the most complete statement of plaintiff's case, is, briefly to recapitulate, that no written or other notice that defendant did not desire to renew the lease was given by defendant lessee to plaintiff or his assignor, lessor, on or before April 1, 1927, and that plaintiff on April 7, 1927, did notify defendant that plaintiff had exercised his option to extend the lease for the term of five years beginning on October 1, 1927, under the terms and condition of the original lease agreement, but that defendant had failed for two months to pay the agreed rent. Defendant's demurrer was sustained. Hence this appeal.

The specific question between the parties is whether the lease agreement and the facts alleged as to its renewal or extension-whichever may be the proper term-show the relation of landlord and tenant between plaintiff and defendant during the months for which rent is claimed, viz., October and November, 1927.

Stated otherwise, the question is whether a paper writing executed by and between the parties was necessary in order to set up the relation of landlord and tenant at an agreed rental between the parties for and during the months for which plaintiff claimed rent. Plaintiff relied in the main upon the decision in City Garage & Sales Co. v. Ballenger, 214 Ala. 576, 108 So. 257, 259. That was the case of a bill in equity to enjoin a suit in unlawful detainer and to enforce an option to renew a lease. The court held that an option to renew a lease on the same rental basis embodied in the lease was, in equity, a part of the estate granted, and passed to the assignee of the lessee. As to that there is no dispute. The question now is whether a legal right to rent as such passed to plaintiff on the facts alleged in the complaint.

Appellee quotes the opinion, in City Garage v. Ballenger, supra, as follows: "This feature of the lease"-referring to the stipulation for renewal or extension-"is executory in character. The tender by the lessee of a renewal lease conforming to the terms of the option, with request for its execution, all the obligations of the lessee having been met, was an exercise of the option, entitling him to specific performance in equity upon refusal of the lessor to execute the renewal lease. *** Equity, treating that as done which ought to be done regards the lessee as rightfully holding the possession."

And appellee lays stress upon this language: "This feature of the lease is executory in character." We think it may with propriety be added that a stipulation for an extension is executory likewise.

Quite a number of the adjudicated cases learnedly-how usefully we need not say-discuss the difference between a stipulation in a written lease for a renewal and a stipulation for an extension. They say: "A provision in a lease for its continuance *** does not, as does a covenant to renew involve an agreement to make a new lease." Mecklenburg Real Estate Co. v. Kyoleum Co., 142 Tenn. 295, 218 S.W. 821, 822, 14 A. L. R. 944. To quote Riggs v. United States (D. C.) 12 F. (2d) 85, 87: "The cases hold that, where the privilege is one...