Fisk Tire Co. v. Hunter

• Decision Date: 05 June 1930
• Docket Number: 1 Div. 579.
• Citation: 221 Ala. 576,130 So. 85
• Parties: FISK TIRE CO. v. HUNTER ET AL.
• Court: Alabama Supreme Court

130 So. 85

221 Ala. 576

FISK TIRE CO. v. HUNTER ET AL.

1 Div. 579.

Supreme Court of Alabama

June 5, 1930

As Modified on Rehearing October 9, 1930.

Appeal from Circuit Court, Mobile County; Joel W. Goldsby, Judge.

Action by W. N. Hunter and T. S. Hunter, as administrators of the estate of Marion S. Hunter, deceased, against the Fisk Tire Company, to recover statutory penalty for detainer after expiration of term of lease. From a judgment for plaintiffs defendant appeals.

Reversed and remanded on rehearing.

Rittenhouse M. Smith, of Mobile, for appellants.

Smith &amp Johnston, of Mobile, for appellees.

BOULDIN J.

The suit is for the statutory penalty, "double the amount of the annual rent agreed to be paid," recoverable by the landlord against a hold-over tenant under Code, § 8014.

Plaintiffs leased to defendant a three-story brick building in Mobile for a term beginning May 1, 1923, and ending October 31 1928, at an annual rental of $1,020, payable in monthly installments.

The lessee, failing to surrender possession on the expiration of the lease, received three days later, November 3d, through plaintiffs' real estate agents, the following notice or demand:

"Under date of May 28th, 1923, you entered into a written lease with the administrators of the estate of Marion S. Hunter, deceased, for the rental of the property on the West side of Water Street between Dauphin and St. Francis Sts., being a certain three story building known as #21 N. Water Street, for a period of five years and six months from the first day of May, 1923, which term ended and determined October 31, 1928.

"We are advised of your refusal to renew the lease for a term of one year from Nov. 1, 1928 and that you still continue, however, to occupy the property. Your possession being unlawful and your having continued to occupy the property since the expiration of your term, we are notifying you that we shall hold you responsible for 'double the annual rent agreed to be paid under] your contract of May 28, 1923, as provided by section 8014 of the Code of Alabama of 1923 and that we shall proceed to enforce our claim as well as a lien for such rent."

When the agent handed such notice to the manager of the lessee, the latter replied: "Why, we have got another place and we are going to get out, and we thought we would have a day or two, and we think this is a little bit arbitrary and snap judgment on us."

Seven days later, November 10th, the possession was surrendered to plaintiffs.

On these undisputed facts the court, sitting without a jury, rendered judgment for the penalty $2,040. Defendant appeals.

Code, § 8014, reads: "Any person who, having entered into the possession of lands and tenements under a contract of lease, forcibly or unlawfully retains the possession thereof after the expiration of his term, or refuses to surrender the same on the written demand of the lessor, his agent or attorney, or legal representative, is liable for double the amount of the annual rent agreed to be paid under such contract, and for such other special damages as may be thereby sustained by the party thus unlawfully kept out of possession, to be recovered as now provided by law in actions of unlawful detainer, or by an action at law for damages."

Appellees' construction of this statute, followed, it seems, by the trial court, is briefly this: The statute imposes the penalty under two alternatives: First. The forcible or unlawful retention of possession by the lessee after the expiration of his term. Second. Refusal to surrender the same on the written demand of the lessor.

The first alternative above contains within itself two alternatives: (a) Where the lessee forcibly retains possession; and (b) where he "unlawfully retains possession."

Any retention of possession after the expiration of his lease without the agreement or permission of the landlord is "unlawful" and subjects the tenant to this statutory penalty. Is this construction correct?

The present statute was enacted in 1860, under the title of an act "To amend the law relative to the unlawful detainer of lands." Acts 1859-60, p. 98. It was codified in the Revised Code of 1867, as section 3312, in the article on "Forcible entry and detainer, and unlawful detainer," where it has remained through all the successive Codes. The act does not purport to change the definition of unlawful detainer, as defined at the time by section 2852, Code of 1852, and as codified along with it in the Revised Code 1867 as section 3300, which read:

" Unlawful Detainer Defined.-An unlawful detainer is, where one who has lawfully entered into possession of lands or tenements, after the termination of his possessory interest, refuses, on demand in writing, to deliver the possession thereof to any one lawfully entitled thereto, his agent

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