Potter v. Henry Field Seed Co.
| Decision Date | 04 May 1948 |
| Docket Number | 47227. |
| Citation | 32 N.W.2d 385,239 Iowa 920 |
| Parties | POTTER et al. v. HENRY FIELD SEED CO. et al. |
| Court | Iowa Supreme Court |
Rehearing Denied June 17, 1948.
Whitney, Whitney & Stern and White & White all of Storm Lake, for appellees.
Pendleton & Pendleton, of Storm Lake, and Keenan & Clovis, of Shenandoah, for appellants.
The plaintiffs, L. D. Potter and Linda Potter, are the owners of a business building in Storm Lake, the lower floor of which they rented to the defendant, Henry Field Seed Company, by lease extending from January 2, 1942 to June 1, 1944. Dr Potter, one of the owners, who is a veterinary, had his office in the basement. This lease was extended on August 15 1944, until June 1, 1947, by the following which was written on the back of the lease. Signed by L. D. Potter and Linda Potter, Henry Field Seed Company by Elbert A. Read, Vice President.
The lease contained, among other covenants, the following provision: 'It is agreed by both parties to this agreement that in the event that the above described property is not vacated and delivered to the party of the first part as above stipulated, then this lease shall be extended and in full force and effect, and the rental payments shall be continued on the terms above named.'
Rent was paid by check issued at the Shenandoah office and mailed to plaintiffs at Storm Lake, with the notation on it of the month for which it paid the rent. Defendant paid the rent in advance for June, July, and August, 1947, at the rate of $85.00 per month. Dr. Potter refused the rent for September. Up to September 11th defendant continued answering telephone calls for Dr. Potter and collecting money for him on account. These services were discontinued on receipt of a letter by defendant from plaintiffs' attorneys directing such discontinuance.
On July 5, 1947, the defendant was notified by a letter signed by Mrs. Potter, that its lease of the property had expired and that she would want possession of the building by September 1, 1947, and they were notified to give possession not later than September 1st.
On July 31st a notice was served on the defendant which is as follows:
On September 3, 1947, a three-day notice to quit was served on the tenant.
The rental from January 2, 1941 to June 1, 1944, was $70.00 per month. Under the extension of 1944 the rent was $85.00 per month. As the time of the termination of the extended lease approached there were conversations between Dr. Potter and defendant's representatives relative to the continued occupancy by the defendant of the premises in question; defendant claiming that Dr. Potter said that it would be all right and defendant could remain in possession of the premises for another year, but he also said that he would consult Mrs. Potter about it, and that there would be an increase of rent. No agreement was ever reached, however, as to the amount of rent, nor any final agreement as to re-renting the premises.
After the date of the expiration of the lease in 1947, on June 9th plaintiffs leased the property to one Virgil Cole for a term commencing September 1, 1947, but the defendant, Henry Field Seed Company, remained in possession of the premises, and so continued up to the time of trial and thereafter.
Defendant claims that the lease was extended for a period of at least three years from the first day of June, 1947, by virtue of the clause of the original lease above quoted, claiming that it was an option to extend the lease. The district court construed the clause to mean, that in the event the lessee held over the agreed expiration date it became a tenant at will and subject to the terms of the lease. The court found against the defendant and decreed that a writ of possession issue. From this order of the court defendant appeals.
I. Defendant's first proposition is that if it was a tenant at will after June 1, 1947, no thirty-day notice of termination of tenancy was given. It argues that the notice to quit was not sufficient. There is no question but what the defendant holding over, after the termination of the lease, was a tenant at will. Section 562.4, Code of 1946; German State Bank v. Herron, 111 Iowa 25, 82 N.W. 430; Nickle v. Mann & Clute et al., 211 Iowa 906, 232 N.W. 722; O'Brien v. Troxel & Brother, 76 Iowa 760, 40 N.W. 704. As such tenant it was entitled to a thirty-day notice of the termination of the tenancy. While the record shows that there were numerous talks about the extension of the lease from and after June 1, 1947, yet nowhere in the record is it disclosed that there was complete agreement or a meeting of the minds on all the provisions of the proposed continuation of the lease. The letter of Mrs. Potter and the fact that evidently the person in charge of the store at Storm Lake knew that the property had been rented to another, among other things, show that the tenant was not unaware that the tenancy must be terminated soon.
An examination of the notice served on July 31st shows that it contains everything required in such notice under the statute, section 562.4, Code of 1946. Defendant was notified that it must vacate and surrender the premises. The lease was described and its termination, and the date by which the vacation of the premises must be accomplished were in the notice. It was denominated a Notice to Quit, which was sufficient as a notice of termination of the tenancy. Defendant could not mistake its meaning, and that is all that is required. There is no technical rule as to the language of the required notice. What is necessary is that the tenant shall understand that the tenancy cannot extend beyond a given date--in this case, September 1st.
In various cases where the question of notice has been discussed, the notice required has been variously termed: Notice to Quit, and Notice of Termination of Lease. This proposition of defendant is without merit. See, Nickle v. Mann & Clute, supra; Hall v. Henninger, 145 Iowa 230, 121 N.W. 6, 139 Am.St.Rep. 412; Kuhn v. Kuhn, 70 Iowa 682, 28 N.W. 541, in which latter case the thirty-day notice was a mere notice to quit. See, 35 C.J. 1133; 51 C.J.S., Landlord and Tenant, § 173; 169 A.L.R. 920; 156 A.L.R., Annotations, 1310.
II. Defendant's second proposition is that by accepting rent for a time after the expiration of the time fixed in the thirty-day notice and the three-day notice, the plaintiffs could not claim any benefit from said notices. The defendant argues, from the terms of the provisions in the two leases that there was, in effect, a waiver of the notices. The original lease contained the provision that as part of the rental 'second party to take care of telephone calls on telephone of first party during the absence of first party and second party to use its best efforts to care for the professional business of first party during the absence of first party.' The plaintiff, Potter, a veterinary, was necessarily absent from his office a considerable time and this provision is merely what it says--to keep account of calls as they came in.
When the new lease was executed on August 15, 1944, there was added the following: 'Second party agrees to accept for the first party all the moneys on account paid in for the benefit of the first party and to account to the first party for the same,' and, as stated, this continued until terminated on September 11th by order of the landlord. Defendant's argument is on a somewhat slender basis, that this part of the agreement continued to be rendered after September 1, the date fixed for the termination of the lease by the notice.
September 8th was the termination of the three-day notice to quit, and defendant contends that by reason of defendant furnishing that service, both after September 1st and September 8th, up to September 11th, the plaintiffs cannot rely on either of said notices as furnishing a basis for this action. One trouble with defendant's contention is that, if we consider the service rendered, the amount of which service the record fails to disclose, as a part of the rent, it was not all of the rent but only a very small portion thereof, consisting of ten days answering the telephone after the termination date fixed in the first notice, and two days answering the telephone after receipt of the second notice to quit. As we have stated, plaintiffs refused to accept the cash rent after September 1, and the service rendered, if any, would be an extremely minute portion of the entire rent. We could hardly say, under these circumstances, that the plaintiffs actually received the rent. See, Benakis v. Damas, 193 Iowa 534, 187 N.W. 436.
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