Lawson v. West Virginia Newspaper Pub. Co.

• Decision Date: 15 February 1944
• Docket Number: 9495.
• Citation: 29 S.E.2d 3,126 W.Va. 470
• Parties: LAWSON v. WEST VIRGINIA NEWSPAPER PUB. CO.
• Court: West Virginia Supreme Court

29 S.E.2d 3

126 W.Va. 470

LAWSON v. WEST VIRGINIA NEWSPAPER PUB. CO.

No. 9495.

Supreme Court of Appeals of West Virginia.

February 15, 1944

W Merle Watkins, of Grafton, for plaintiff in error.

Francis L. Warder, of Grafton, for defendant in error.

ROSE President.

The New York Life Insurance Company, owning a brick business building in the City of Grafton, by written lease dated October 1, 1937, demised certain of the rooms therein to the defendant, The West Virginia Newspaper Publishing Company, a corporation, having its principal place of business at Morgantown. By deed dated September 18, 1939, the Insurance Company conveyed the building and assigned the lease to the plaintiff, D. W. Lawson. The defendant vacated the premises December 31, 1939 paying rent to that date. This action was instituted November 25, 1940, for the recovery of rent alleged to be due and unpaid for the period beginning January 1, 1940, and ending October 1, 1940, and for certain damages to the building and fixtures claimed to have been caused by the defendant. A demurrer to the declaration was overruled, a plea of the general issue interposed and trial had, resulting in a verdict for the defendant. The court overruled a motion to set aside this verdict and entered judgment accordingly.

The plaintiff concedes that the adverse verdict as to the damages to the building and fixures involved a question of fact on which there was substantial conflicting evidence, and that he, therefore, is remediless as to this part of the verdict but insists that as a matter of law he, as assignee of the Insurance Company lease, was entitled to the rent sued for. On this proposition his principal assignments of error rest.

The action is in assumpsit. The declaration contained but a single count relating to the rent claimed, and that was a special count based wholly on the Insurance Company's lease which is set forth in haec verba. A principal question here is whether the Insurance Company lease covered the period for which the plaintiff claims rent. The plaintiff's position is that the instrument created a lease from year to year, which could be terminated only by the giving of a written notice of termination by one of the parties to the other one month before the end of a current year. It is conceded that no such notice was given. The defendant construes the lease as creating a definite term of twelve months from its date which, however, would be continued for a single like period, unless notice of termination should be given one month before the expiration of the first year.

The provisions of the lease relating to the term are as follows:

"That the said party of the first part doth demise unto the said party of the second part that certain store room situate in the City of Grafton, Taylor County, West Virginia, at 134 West Main Street, together with the basement under said store room which basement fronts on Labrobe Street of said city, from the first day of October, 1937, for the term of twelve months thence next ensuing, and to expire on the first day of October, 1938, yielding therefor, during said term, the rent of Five Hundred and Fifty and no/100 ($550.00) Dollars. ***

Either party hereto may terminate this lease at the end of said term by giving the other written notice at least one month prior to the expiration hereof, and, in default of such notice, this lease shall continue for a like period of time, upon the same terms and conditions as are herein contained; provided, however, that if the Lessor shall at any time give notice in writing, at least three months previous to the expiration of said term or any continuation or renewal thereof as above, of its intention to change the terms and conditions of this lease, and the tenant shall hold over into another term, he shall be considered a tenant under the terms and conditions mentioned in such notice, until this lease is terminated by notice as hereinbefore provided."

It will be observed that the lease first expressly and clearly creates a term for the distinct period of "twelve months thence next ensuing, and to expire on the first day of October, 1938". By this paragraph, considered alone, the lease was for twelve months and no more; but the second paragraph quoted, by certain express provisions, clearly modifies the limitation of the term fixed by the first. Unless one of the parties, one month prior to the expiration of the lease, shall give to the other a notice of termination, "this lease shall continue for a like period of time, upon the same terms and conditions as are herein contained; ***." The plaintiff says that any extension of the lease "upon the same terms and conditions" necessarily means that, at the end of the second period, the same right of continuance would again exist for still another like term, in the absence of notice of termination, and so on indefinitely, from period to period until such notice should be given.

However persuasive from a logical or legalistic view this conclusion may be, we find that courts generally do not accept it. "A general covenant to renew or a covenant to renew with like terms, conditions, and covenants does not import a renewal covenant in the renewal lease." 35 C.J. page 1027. "It is quite plain that a lease containing a covenant to renew at its expiration with similar covenants, terms, and conditions contained in the original lease is fully carried out by one renewal without the insertion of another covenant to renew. Otherwise a perpetuity is provided for." Winslow v. Baltimore & O.R. Co., 188 U.S. 646, 23 S.Ct. 443, 446, 47 L.Ed. 635. For concurrence see II Tiffany on Landlord and Tenant, section 227; I...