Jones v. King, 4 Div. 495.

• Decision Date: 15 May 1930
• Docket Number: 4 Div. 495.
• Citation: 128 So. 378,221 Ala. 179
• Parties: JONES v. KING ET AL.
• Court: Alabama Supreme Court

128 So. 378

221 Ala. 179

JONES v. KING ET AL.

4 Div. 495.

Supreme Court of Alabama

May 15, 1930

Appeal from Circuit Court, Bullock County; J. S. Williams, Judge.

Suit by Charles H. Jones against H. L. King and others to restrain interference with complainant's exclusive hunting privileges on certain lands. From a decree dissolving a temporary injunction, complainant appeals.

Reversed and rendered.

W. H Merrill, of Eufaula, for appellant.

Chauncey Sparks, of Eufaula, and T. S. Frazer and L. M. Moseley, both of Union Springs, for appellees.

ANDERSON C.J.

The lease between Jones and King was for a period of one year, to wit, from August 23, 1926, to August 23, 1927; but it contained the following clause: "The party of the first part herein gives the party of the second part the option for an extension of this lease upon same terms of rental, for a period of five (5) years from the date of expiration hereof without further writing." This was unquestionably a right to extend rather than a right to renew, and a notification by party of the second part during the first year of the desire to extend the same for the next five years would have operated as an exercise of the option and the extension of the lease. Feidelson v. Piggly Wiggly Ala. Co. (Ala. Sup.) 127 So. 516, and authorities there cited. In order, however, to accomplish the extension as per the terms of the lease, Jones should have done so for the term of five years instead of for just the next succeeding year so there was no extension of the lease for five years. Both parties, however, seem to have treated it as authorizing an extension from year to year, as Jones's offer and tender of the rent was accepted by King for the years 1927 to 1928 and 1928 to 1929 and the pivotal question now involved is whether or not there was an extension from August, 1929, to August, 1930. Jones notified King of his desire to keep the land for another year and tendered the rent covering said period, which was accepted by King, June 20th, and who did not at the time decline the rent or the offer of extension, but did attempt on the 29th, nine days thereafter, to return the rent and reject the offer of extension. There can be no doubt that King accepted the rent whether as a check or money, and did not return what he received, but returned the same by way of a check of the Midway Bank, thus showing that he had accepted and used the rent as tendered by...