Fidelity Building & Loan Ass'n v. Protective Life Ins. Co.
| Decision Date | 24 March 1936 |
| Docket Number | 6 Div. 860 |
| Citation | 168 So. 896,27 Ala.App. 186 |
| Court | Alabama Court of Appeals |
| Parties | FIDELITY BUILDING & LOAN ASS'N v. PROTECTIVE LIFE INS. CO. |
Rehearing Denied May 19, 1936
Appeal from Circuit Court, Jefferson County; Leigh M. Clark, Judge.
Suit by the Protective Life Insurance Company against the Fidelity Building & Loan Association. Judgment for plaintiff, and defendant appeals.
Affirmed.
Certiorari denied by Supreme Court in Fidelity Building & Loan Ass'n v. Protective Life Ins. Co. (6 Div. 988) 168 So. 899.
Lange Simpson & Brantley, of Birmingham, for appellant.
Cabaniss & Johnston and K.E. Cooper, all of Birmingham, for appellee.
Suit by appellee against appellant to recover rent alleged to be due under a lease agreement covering specific property.
There is small doubt in our minds but that the complaint consisting of a single count, was subject to demurrer. But the first two grounds of demurrer interposed were "but general *** not specific, as the statute (Code 1923, § 9479) requires, and the court did not err in overruling them." Denson v. Caddell, 201 Ala. 194, 77 So. 720. The third (and there were but three) ground, i.e. that "the said count attempts to declare on a lease agreement and said agreement is not set out in full" (italics ours), is not well taken for the reason it was not necessary to set out the lease agreement in full. Senteney v. United Embroidery Co. et al., 230 Ala 53, 159 So. 252.
We do not think appellant was injured in any way, anyhow, by the court's action in overruling its demurrers to the complaint. The parties were enabled to, and allowed to, litigate freely and fairly the one question between them--which question we will proceed to state and discuss.
First, it should be remarked that appellee let to appellant, by a valid lease, a certain building for the term of five years, beginning October 1, 1929, and ending on September 30, 1934. The rental stipulated was on a graduated basis; that for the last year, beginning October 1, 1933, being $250 per month.
Just prior to October 1, 1933, appellant was in "failing circumstances"--in "liquidation," the parties phrase it.
Appellant's president, Mr. Chambless, was also the president of Fidelity Mortgage Company of Alabama, which concern was solvent, and occupied jointly with appellant the leased premises, though concerned in no wise with the lease.
At the time mentioned above, just prior to October 1, 1933, Mr. Chambless, as president of appellant concern, discussed with lessor's (appellee's) rental agent, Mr. Dearborn, the question of a reduction of rent, stating to Dearborn as follows, to quote his language:
Mr. Dearborn stated that the purport of the discussion would have to be referred to the lessor for its decision.
Thereafter, the following quoted letter was written by appellee's agent, duly authorized thereunto, to Dearborn, and a copy thereof likewise forwarded to appellant, to wit:
The lessee (appellant) received the copy of the above letter, read it, "understood what it was," and "assented to that letter." "No objections were made to any of the terms of the letter at all." There was no other agreement "altering any of the provisions of this letter."
After the above letter was written and received by appellant, the reduced rental of $150 per month was paid monthly, before the 10th of each month, for nine months, until July 1, 1934, when (prior thereto, in June) appellee, lessor, in writing canceled or withdrew the reduction stipulated in its above-quoted letter of October 5, 1933. This "cancellation," or "withdrawal," of this reduction was prompted, as is asseverated on...
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