Little v. Redditt

• Citation: 264 Ala. 371,88 So.2d 354
• Decision Date: 14 June 1956
• Docket Number: 3 Div. 761
• Parties: T. D. LITTLE et al. v. Frank L. REDDITT.
• Court: Supreme Court of Alabama

Page 354

88 So.2d 354

264 Ala. 371

T. D. LITTLE et al. v. Frank L. REDDITT.

3 Div. 761.

Supreme Court of Alabama.

June 14, 1956.

Hugh M. Caffey, Jr., Brewton, and Godbold & Hobbs, Montgomery, for appellants.

Brooks & Garrett, Brewton, for appellee.

GOODWYN, Justice.

This is an appeal by the complainants below from a decree sustaining demurrer to a bill for declaratory judgment.

The bill seeks a decree declaring null and void a purported option for renewal of a lease on real estate because of an absence of any lawful consideration therefor.

In substance, the facts alleged in the bill are as follows:

On February 1, 1946, one Claribel Mason Harb leased the premises from complainants' predecessor in title for a ten-year term ending on January 31, 1956. On February 27, 1948, the said Claribel Mason Harb and complainants' predecessor in title executed the following instrument:

'The undersigned Anna L. Mason and F. H. Mason, hereinafter called Landlord, and Claribel M. Mason [Harb], hereinafter called Tenant, agree that paragraph 2 of that certain lease agreement executed between the landlord and the tenant on February 1, 1946, respecting real estate in the City of Brewton, Alabama, and particularly described therein, be amended by adding thereto the following words and figures:

"In further consideration of said rental the landlord gives and grants unto the tenant the option and privilege of renewing or extending this lease and the term thereof after the expiration of the original term, for a period of from one (1) to ten (10) years, as may be desired by the tenant; said option to be exercised either by her holding over or by a written notice to the landlord, or his or her heirs or personal representatives, given at least thirty (30) days prior to January 31, 1956."

On August 12, 1948, the respondent acquired from Claribel Mason Harb all of her rights under the lease and purported option agreement.

The position taken by complainants is that there was no lawful consideration for the purported option agreement, 'which fact is apparent from the instrument itself', and that for this reason said agreement is void.

The bill appears to have been filed on November 16, 1955, prior to the expiration of the ten-year term of the original lease. The bill alleges that complainants 'have communicated to respondent that Exhibit 'B' is void as to the agreements contained therein and have offered to negotiate a new lease with respondent prior to the expiration of the lease attached hereto as Exhibit A but respondent has failed and refused to negotiate with complainants and has communicated his intention to remain in possession of the leased premises under the terms of the instrument attached hereto as Exhibit 'B."

There appears to be no question that the bill presents a bona fide justiciable controversy which should be settled. A threshold question, therefore, is whether it was appropriate to sustain the demurrer.

If a bill for declaratory relief states the substance of a bona fide justiciable controversy, which should be settled, it is sufficient to withstand a demurrer directed to it. In such situation the demurrer should be overruled and a declaration of rights made and entered only after answer and on such evidence as the parties may deem proper to introduce on submission for final decree. This is to say that the test of the sufficiency of such a bill is not whether it shows that the complainant will succeed in getting a declaration of rights in accordance with his theory and contention, but whether he is entitled to a declaration of rights at all. Curjel v. Ash, 263 Ala. 585, 83 So.2d 293, 296; Curjel v. Ash, 261 Ala. 42, 45, 72 So.2d 732; Water-works and Sanitary Sewer Board v. Dean, 260 Ala. 221, 69 So.2d 704; Percoff v. Solomon, 259 Ala. 482, 67 So.2d 31, 38 A.L.R.2d 1100; Carter Oil Co. v. Blair, 256 Ala. 650, 57 So.2d 64, 66; White v. Manassa, 252 Ala. 396, 399, 41 So.2d 395; City of Bessemer v. Bessemer Theatres, 252 Ala. 117, 39 So.2d 658; Shadix v. City of Birmingham, 251 Ala. 610, 38 So.2d 851; McCall v. Nettles, 251 Ala. 349, 37 So.2d 635; Alabama State Milk Control Board v. Graham, 250 Ala. 49, 33 So.2d 11; Gilmer v. Gilmer, 245 Ala. 450, 17 So.2d 529; Anderson's Declaratory Judgments, 2d Ed., § 318, p. 743. However, both parties have requested that we determine the validity of the option agreement on this appeal. And since it appears that a question of law only is presented, which will settle the controversy, we will pass on it at this time. Wade v. Bragg, Ala.Sup., 86 So.2d 829, 830; Mobile Battle House v. City of Mobile, 262 Ala. 270, 272, 78 So.2d 642; Water Works and Sanitary Sewer Board v. Campbell, 262 Ala. 508, 510, 80 Co.2d 250; Atkins v. Curtis, 259 Ala. 311, 314, 66 So.2d 455.

The position taken by respondent is that, in executing the writing embracing the option, the parties to the original lease agreement thereby modified or altered its provisions by mutual consent, the original lease agreement at the time being executory; that the consideration for such modification or alteration was the mutual assent of the parties, and that no new or additional consideration was required to make the option binding on the parties and their successors in interest. The following cases are cited in support of this insistance, viz.: Grady v. Williams, 260 Ala. 285, 70 So.2d 267; Spry v. Pruitt, 256 Ala. 341, 54 So.2d 701; Spencer v. Richardson, 234 Ala. 323, 175 So. 278; E. T. Gray & Sons v. Satuloff Bros., 213 Ala. 526, 105 So. 666; Vinyard v. Republic Iron & Steel Co., 205 Ala. 269, 87 So. 552; Dickey v. Vaughn, 198 Ala. 283, 73 So. 507; Wellden v. Witt, 145 Ala. 605, 40 So. 126; Mylin v. King, 139 Ala. 319, 35 So. 998; Dunaway v. Roden, 14 Ala.App. 501, 71 So. 70.

Respondent takes the further position that an actual consideration for the option referred to in argument as 'the amendment to the lease agreement,' is shown by the recital that the option is given 'in further consideration of said rental'; that the consideration for an option agreement need not be more than nominal, and that a recited valuable consideration, whether adequate or not, makes the option binding. In support of this, the following cases are relied on, viz.: Bethea v. McCullough, 195 Ala. 153, 480, 70 So. 680; Ross v. Parks, 93 Ala. 153, 8 So. 368, 11 L.R.A. 148.

Respondent refers to the 1948 writing as an 'amendment' of the 1946 agreement. But the later writing contains no provision changing the terms or conditions of the earlier agreement in any respect. The later writing does no more than grant...