Roberson v. Baldwin, 3 Div. 984

• Decision Date: 30 August 1955
• Docket Number: 3 Div. 984
• Parties: Herman ROBERSON et al. v. William O. BALDWIN.
• Court: Alabama Court of Appeals

Page 348

82 So.2d 348

38 Ala.App. 269

Herman ROBERSON et al. v. William O. BALDWIN.

3 Div. 984.

Court of Appeals of Alabama.

Aug. 30, 1955.

Ben Hardeman, Montgomery, for appellants.

Henry C. Meader and Ralph A. Franco, Montgomery, for appellee.

HARWOOD, Presiding Judge.

In the trial below this case went to the jury on five counts, namely Counts 6, 7, 9, 10, and 11.

Count 6 sounded in unlawful detainer and claimed $3,600 as damages, being double the amount of annual rent agreed to be paid under a lease entered into between the appellant lessee and the appellee landlord.

The count avers in pertinent parts that the appellants entered into the possession of the described premises under the lease, which expired on 1 October 1950; that under the terms of the lease, a copy of which was attached to and made a part of the count, the appellants agreed to surrender possession of the premises at the termination thereof, without notice of said termination; and in reliance upon such agreement the appellee leased the premises to other parties for a term commencing at the expiration of the lease; the complaint further avers that appellee made a written demand for possession of the premises by letter dated 1 September 1950, and delivered to appellants on that day, a copy of the letter being attached to and made a part of the count; the count further avers that the appellants failed to comply with the lease, and said demand for possession, and unlawfully retained possession of the premises through 12 October 1950; it was further averred that the annual rent under the terms of the lease was $1,800, and appellee claimed the sum of $3,600, 'being double the amount of the annual rent agreed to be paid under said lease, as provided by Section 977, Title 7, Code of Alabama of 1940.'

Count 7 is virtually identical with Count 6, except that no written notice of the termination of the lease is averred, but rather a waiver of demand for possession is averred, said waiver arising out of the terms of the lease.

Count 9 claimed damages of $230.64, as double the value of the customary rent of the property withheld, as provided by Section 46(3), Title 31, Code 1940. This count avers the written notice contained in the letter of 1 September 1950.

Count 10 is substantially the same as Count 9, except it relies upon waiver of demand for possession arising out of the terms of the lease.

Count 11 claims $115.32 damages as being the value of the use and occupation of the premises during the time the premises were unlawfully withheld.

Demurrers were filed to the counts separately and severally, and by the court overruled.

Issue was thereupon joined upon a plea of the general issue in short by consent with leave to give in evidence matters admissible if specially pleaded.

A jury trial resulted in a general verdict for the plaintiff, his damages being assessed at $750.

Both parties filed motions for new trials, which motions were overruled. The defendants thereafter perfected an appeal to this court, the appeal being upon the record proper, with no transcription of the evidence.

Counsel for the appellants has assigned innumerable grounds of error. We will, however, pretermit consideration of all but two propositions which we think conclusive.

One of these propositions, properly assigned as error, is that the court erred in refusing appellants' motion for a new trial in that the verdict cannot properly be referred to any of the counts of the complaint submitted to the jury.

The amount of damages assessed in the general verdict was $750. If any of the counts will sustain this award, the verdict will of course be referred to such count or counts.

In his brief counsel for appellee states: 'It is true the verdict could not be referred to Count Eleven which only claimed $115.32, or to either Count Nine or Ten, each of which claimed $230.64, but there is no difficulty whatever in referring it to either Count Six or Count Seven, each of which we believe the Court will find to be good.'

We agree with the above statement to the extent that the verdict cannot rationally or under controlling principles be referred to either Counts 9, 10, or 11, because of the gross disparity between the amounts claimed in such counts and the amount awarded in the verdict.

The verdict and judgment therefore must be referred to Counts 6 and 7, the counts seeking the statutory penalty provided for under Section 977 of Title 7, Code 1940.

Among the grounds of demurrer addressed to Counts 6 and 7 are several questioning the sufficiency of the counts because of their failure to aver that the plaintiff gave to the defendants, after termination of their possessory interest in the premises, the ten days' statutory notice to deliver over possession of the premises.

The rulings on demurrer were among the grounds assigned in appellants' motion for a new trial, and, further, Assignment of Error No. 10 specifically asserts as error the action of the court in overruling the demurrer of the defendants filed in open court on April 29, 1953, as directed to Count 6 as last amended. Assignment of Error 11 is identical as to Count 7.

These assignments are entirely sufficient to invite our review of the sufficiency of Counts 6 and 7 as tested by the demurrers on the grounds above mentioned. Vinson v. Vinson, 256 Ala. 259, 54 So.2d 509; Copeland v. Swiss Cleaners, 255 Ala. 519, 52 So.2d 223.

The answer depends upon whether the letter written and delivered by plaintiff below to the defendants on 1 September 1950 can be deemed a demand for possession in compliance with the principles governing unlawful detainer suits seeking double the amount of the annual rent as provided in Section 977, supra, or, further, whether the provision in the lease that the lessees expressly waive 'the service of any notice of intention to re-enter, notice to terminate the tenancy, notice to quit or demand for possession' obviates the requirement of the ten days' demand for possession ordinarily required in actions under such statute.

Section 977, supra, is as follows:

'Any person who, having entered into the possession of lands and tenements under a contract of lease, forcibly or unlawfully retains the possession thereof after the expiration of his term, or refuses to surrender the same on the written demand of the lessor, his agent or attorney, or legal representative, is liable for double the amount of the annual rent agreed to be paid under such contract, and for such other special damages as may be thereby sustained by the party thus unlawfully kept out of possession, to be recovered as now provided by law in actions of unlawful detainer, or by an action at law for damages.'

This section must, however, be considered in pari materia with other code sections relating to forcible entry and unlawful detainer actions. Hill Co. v. Taylor, 234 Ala. 282, 174 So. 481. And, being...