Johnson v. Blocton-Cahaba Coal Co.

• Decision Date: 27 January 1921
• Docket Number: 2 Div. 742
• Citation: 205 Ala. 373,87 So. 559
• Parties: JOHNSON v. BLOCTON-CAHABA COAL CO.
• Court: Alabama Supreme Court

87 So. 559

205 Ala. 373

JOHNSON v. BLOCTON-CAHABA COAL CO.

2 Div. 742

Supreme Court of Alabama

January 27, 1921

Rehearing Denied Feb. 19, 1921

Appeal from Circuit Court, Bibb County; B.M. Miller, Judge.

Action in unlawful detainer by the Blocton-Cahaba Coal Company against William Johnson. Judgment for plaintiff, and defendant appeals. Affirmed.

Frank S. White & Sons, of Birmingham, for appellant.

Percy Benners & Burr, of Birmingham, for appellee.

THOMAS J.

Recent decisions touching the questions presented on this appeal are Vinyard v. Republic Iron & Steel Co., 87 So. 552 Allen v. Southern Coal & Coke Co., 87 So. 562, and Eddins v. Galloway Coal Co., 87 So. 557.

By the terms of the instant lease contract Blocton-Cahaba Coal Company rented to William Johnson the house designated: (1) So long as he continued in the employment of that company (2) the tenant expressly waiving "the thirty days' notice to vacate, or any other notice to vacate, that the Blocton-Cahaba Coal Company would otherwise be required to give"; (3) for any violation of the terms of the agreement said company might immediately terminate the lease and immediately take possession of the said premises. It is further stipulated (4) that a waiver of one breach of this contract by the "company shall not operate as a waiver of other breaches," and (5) that the consideration for the lease was a rental of $6 per month to be paid by the said William Johnson on the 15th day of each month to the said Blocton-Cahaba Coal Company.

Strictly speaking, this was not the creation of a tenancy at will, since it was expressly stipulated that monthly rentals be paid "on the 15th day of each month," subject to forfeiture by failure of payment and discontinuance of employment of lessee by lessor. In Lammon v. Southern Cotton Oil Co., 85 So. 523, the lease contract contained no provision for any periodical payment of rent, and in Hunnicutt v. Head, 179 Ala. 567, 60 So. 831, there was no stipulation for periodical payment of rent by the year, month, or week--no rent being charged. It is true that Johnson was free to leave the employment of the coal company at any time he desired, and the company had such right of discharge; yet the rental period was fixed by the month, and $6 was to be paid "on the 15th day of each month," and to continue "so long as said Johnson continues in the employment of said company."

Plaintiff's evidence shows that on the date of the execution of the above-mentioned lease the said Johnson was in the employment of plaintiff, and continued in its employment until May 8, 1920, at which time he left the employment of the plaintiff, and has not since worked for it; that the defendant paid the amount of rent on his house and went into possession of the same under the lease referred to--that is to say, paid the stipulated rent "in accordance with the lease up to the 1st day of June, 1920." Defendant's evidence was to the effect that he signed the lease on the day the same bears date, paid rent according to its terms up to April 1, 1920, and for the months of April and May paid at a different rental demanded of him by plaintiff. The reasonable construction of the uncontroverted evidence was that the rent was fully paid by defendant for the month of May, 1920, and not thereafter; that on the 8th day of May he left the employment of plaintiff, and has not since been employed by it; that on July 23d plaintiff gave notice in writing to defendant that his "possessory interest" in the premises in question was thereby terminated, "effective July 26, 1920, and according to the terms of the lease" he was notified to surrender possession of said premises (house and inclosure) before the date indicated, "or legal steps will [would] be taken to dispossess" him of the same. Thereafter, on July 27, 1920, plaintiff demanded in writing possession within 10 days, etc., by serving a copy of such demand in writing on the defendant or by leaving the same at his usual place of abode. Such respective notices were sufficient for the purposes each was intended to subserve. Vinyard v. Repub. I. & S. Co., 87 So. 552; Harris v. Hill, 190 Ala. 589, 67 So. 284; Ross v. Gray Eagle Coal Co., 155 Ala. 250, 46 So. 564. It is observed that more than 10 days elapsed between the service of statutory or final notice before institution of unlawful detainer and the institution of the suit on August 7th. Code, § 4263; Harris v. Hill, supra.

It is of statutory requirement that, where no time is specified for the termination of a tenancy, the law construes it for the calendar year, but that a tenancy at will may be terminated at will by 10 days' notice in writing by either party. Code, § 4732; Lammon v. Southern Cot. Oil Co., supra; Hunnicutt v. Head, supra. This statute is without application to the terms of the instant lease, giving the right of "immediate termination" by the lessor for any violation of the terms of the agreement. The evidence is without conflict that defendant had left the employment of plaintiff and had defaulted in payment of the monthly rental on the 15th day of June and July, 1920.

Appellant's assignment of error and argument of counsel supporting the same were that the admission by ...