Lanham v. McWilliams

• Decision Date: 15 April 1909
• Docket Number: 1,603.
• Citation: 64 S.E. 294,6 Ga.App. 85
• Parties: LANHAM v. McWILLIAMS.
• Court: Georgia Court of Appeals

64 S.E. 294

6 Ga.App. 85

LANHAM v. McWILLIAMS.

No. 1,603.

Court of Appeals of Georgia

April 15, 1909

Syllabus by the Court.

A lease for one year gave the tenant an option of claiming an additional term of 1, 2, 3, of 4 years, provided notice of his election be given the landlord 90 days prior to the expiration of the first year. No notice was given; but the tenant nevertheless continued to occupy the premises and paid rent, which the landlord accepted without question objection, or explanation on the part of either party, for several months after the expiration of the first year. Held, both the landlord and the tenant are bound for an additional term of one year.

[Ed Note.-For other cases, see Landlord and Tenant, Cent. Dig. § 378; Dec. Dig. § 114. ^[*]]

Where a lease for a certain term gives the tenant the option of claiming an additional term of one to four years, and the tenant continues in possession after the expiration of the first term under such circumstances as to show an election of an additional term of one year; there cannot be another election to extend the lease over the remaining three years and continued occupancy after the expiration of the second term under a parol agreement creating an additional term of more than one year would create a tenancy at will.

[Ed. Note.-For other cases, see Landlord and Tenant, Cent. Dig. §§ 410, 411; Dec. Dig. § 118. ^[*]]

The verdict being contrary to law, a new trial should have been granted.

Error from City Court of Floyd County; Harper Hamilton, Judge.

Action by O. H. McWilliams, survivor, against J. H. Lanham, survivor. Judgment for plaintiff, and defendant brings error. Reversed.

McWilliams leased a storehouse to Lanham for a period of one year, beginning September 1, 1905, at $125 a month, and the lease gave the tenant the option of claiming an additional term of from 2 to 5 years from September 1, 1905 (in other words, an additional term of 1 to 4 years from September 1, 1906, when his first term expired), provided notice of an intention to claim the additional term was given to the landlord 90 days prior to the expiration of the first year. Some time in the summer of 1906 the landlord went to the tenant and asked him what he intended to do about the lease, and the tenant gave an equivocal reply. No notice was given of an intention to claim any additional term; but the tenant continued to occupy the premises into the second year and to pay the same rent month by month, and the landlord accepted it without question. Thus the matter stood until some time in June, 1907. Just what happened after this time depends upon whether the landlord or the tenant was correct in his recollection of the conversations between them, as their evidence is squarely conflicting. On the one hand, the tenant testified clearly and unequivocally that in June, 1907, the landlord gave him notice that after the expiration of the second year he would increase the rent to $150 a month; that he refused to agree to pay such rent, and a parol agreement was made that the tenancy would be continued at the will of each party. The landlord denied making any such agreement, but admitted that he threatened to increase the rent, and also that he advertised the property for rent in August before the expiration of the second year. He stated that he was merely attempting to force the tenant to a clear and unequivocal election of just how long he intended to occupy the premises; that the tenant kept on evading the question, and insisting that, if "he would only sit steady in the boat and let matters rock along," everything would be all right; that at no time did the tenant state that he would quit the premises at the expiration of the second year, but, on the contrary, assumed the attitude of having a right to remain in possession of the premises for the full period up to 1910 if he chose so to do; that one time the landlord had an opportunity to rent the premises to a third person but the tenant objected, and the landlord then let the matter drop, thinking that the tenant would keep the premises for the full period mentioned above; that a little later he had a clear, unequivocal parol agreement with the tenant, whereby the lease was to be continued in force until September 5, 1910. In November, 1907, the tenant gave the landlord 30 days' notice, and then sent him a check for rent up to that time and surrendered the keys. The landlord sued out a distress warrant for rent for the two following months; that is, for December, 1907, and January, 1908. The jury returned a verdict in favor of the landlord, and the tenant excepts to the overruling of his motion for a new trial.

W. W. Mundy and Dean & Dean, for plaintiff in error.

John W. & G. E. Maddox, for defendant in error.

POWELL J.

The motion for a new trial contains, among other grounds, an assignment of error complaining of the following excerpt from the charge of the judge to the jury: "I charge you that in the event a party passes into possession of property under a contract like this one, with the right of renewal, and continues in possession after the expiration of the first term, without any notice, the law then would bind him to the full term named in the contract. In other words, Lanham & Sons would be bound, under this contract, from September 1 1906, to September 1, 1910, unless they have been released by the plaintiff in this case, or there had been some verbal change in the contract, or they have an agreement that there would be a tenancy at will. A continuance to occupy the building in question after the expiration of the two-year term provided for in the contract relied upon by the plaintiff would thereby extend the original contract and spread the same over a term of five years from the date thereof, unless said contract has, in some way, been changed or abrogated by the parties." It has been held that where a lease gives the tenant the right to an extension of his term for an additional period at his option, and the lease is silent as to notice being given to the landlord of the tenant's election to claim the additional term, the mere continuance in possession after the expiration of the first term without notice, and the payment of rent by the tenant and the acceptance thereof by the landlord, will bind...