Smith v. Russ, 41347

• Decision Date: 16 May 1959
• Docket Number: No. 41347,41347
• Citation: 184 Kan. 773,339 P.2d 286
• Parties: Frances J. SMITH, John J. Smith and Betty Ellen Gross, Appellees, v. Everett RUSS, Appellant.
• Court: Kansas Supreme Court

Page 286

339 P.2d 286

184 Kan. 773

Frances J. SMITH, John J. Smith and Betty Ellen Gross, Appellees, v. Everett RUSS, Appellant.

No. 41347.

Supreme Court of Kansas.

May 16, 1959.

Rehearing Denied June 17, 1959.

Syllabus by the Court

1. In an action to eject a tenant where two provisions of the lease under which the tenant holds possession relating to the renewal or extension of such lease are repugnant, one requiring the written consent of the landlords for an extension of the lease and the other granting the tenant an option to extend the lease for an additional five years, it is held: The tenant's exercise of the option in accordance with the terms of the option provisions is binding and the trial court erred in entering judgment sustaining the action.

2. Where there is uncertainty between the general provisions and the specific provisions of a written farm lease, the specific provisions ordinarily qualify the meaning of the general provisions, the reasonable inference being that the specific provisions express more exactly what the parties intended.

3. As a general rule in construing the provisions relating to renewals or extensions of leases between landlord and tenant, where the lease is prepared by the landlord and there is uncertainty, the tenant is favored and not the landlord.

Robert Osborn, Stockton, argued the cause and was on the brief for appellant.

D. A. Hindman, Stockton, argued the cause, and Stanley Krysl, Stockton, was with him on the brief for appellees.

SCHROEDER, Justice.

This is an ejectment action. Whether the action is proper depends upon an interpretation of the provisions of a written farm lease between the parties.

The principal question is whether the tenant may at his option extend the lease without the written consent of the landlords.

Issues were joined by the pleadings and the case was submitted to the district court upon an agreed statement of facts at a pretrial conference.

On March 4, 1955, the parties entered into a written farm lease, whereby the appellees leased certain farm properties to the appellant for a primary term of three years, ending March 1, 1958. It contained an option provision whereby the appellant might extend the lease for an additional five years, or until March 1, 1963. This lease was drawn by the attorneys for the appellees and the controversy concerns two provisions thereof, the interpretation of which is the basis for this lawsuit. They are as follows:

' Second Party shall not release or sublease said premises, or any portion thereof or assign this lease nor shall there be any renewal or extension of the same without the written consent of the parties of the first part.

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' Second Party has the option of extending this lease for an additional five (5) years from March 1st, 1958 to March 1st, 1963, upon the following terms, to-wit:

'1. He agrees to pay the sum of $3.00 cash rent for land that is set aside for feed ground and $2.50 per acre for grass land, to be paid after the crop has matured or harvested, and at the end of each grazing season.

'2. In addition he shall pay to First Parties the usual and customary 1/3rd of all small grain raised on said premises, the same to be delivered free of cost to market for the benefit of First Parties, the alfalfa crop or land shall be handled on the same basis as stated aforesaid:

'3. In order to exercise this option for additional five year lease, it shall be necessary that Second Party notify First Parties in writing of his intention to exercise said option. Said notice shall be sent by registered mail to Frances J. Smith, at Codell, Kansas and notice to her shall constitute notice to all parties to this agreement. Said notice shall be placed in the United States mails on or before January 1st, 1958. In the event Second Party does not exercise this option, he shall have the privilege of re-entering upon said premises after March 1, 1958, for the purpose of harvesting the wheat crop which he plants thereon in the fall of 1957. In the event this option is exercised, First Parties shall have the privilege of entering upon said premises as soon as Second Party has harvested the grain grown thereon for the purpose of preparing the land and seeding for the period of 1963.'

The second party in the lease is the tenant (appellant) and the parties of the first part are the landlords (appellees).

The appellant gave the appellees written notice of his intention to extend the lease on December 2, 1957, within the period provided in the lease for such notice. The appellees on the 5th day of December, 1957, gave the appellant written notice to vacate the premises on or before the 1st day of March, 1958, and further indicated that they were giving such notice for the purpose of advising the appellant that the appellees had no intention of consenting to the renewal or extension of said lease in writing as provided in said lease, or otherwise, and in order that there be no misunderstanding.

The trial court requested briefs and took the case under advisement, following which it found that the appellees were required to consent to a renewal or extension of the lease and thereupon entered judgment for the appellees. Appeal was taken from this order.

The trial court further found that the appellant remained in possession and farmed the land during the year 1958, the same as if he had a valid lease, and was therefore a hold-over tenant from year to year under the terms of the original lease. The court decreed that the lease of the appellant expired the 1st day of March, 1959, and required no further notice to the appellant. A cross appeal was taken from this order, but March 1, 1959, having since expired, the parties agree the cross appeal is moot.

The parties to this action during the primary term of the lease were involved in another lawsuit concerning this lease. That action was by the landlords for reformation of the written lease and for cancellation. A demurrer was sustained to the evidence on reformation of the lease, and after hearing all the evidence regarding cancellation the trial court held that the breaches by the tenant, if any, were not such as would justify a cancellation of the lease.

Appellant now asserts that the question here presented could have been litigated in the prior action and the question here presented has res judicata. The appellant contends the lease was before the lower court for interpretation in the first action. (But the record discloses it was not on the point here in controversy.) He argues that it is elementary law that a judgment between parties is conclusive as to every matter actually litigated, and to every matter that might have been litigated in the original action. Citing: Townsdin v. Shrader, 39 Kan. 286, 18 P. 186; Sanford v. Oberlin College, 50 Kan. 342, 31 P. 1089; Dixon v. Caster, 65 Kan. 739, 70 P. 871; and Ullrich v. Bigger, 81 Kan. 756, 106 P. 1073.

The rule that a judgment in bar, or as evidence in estoppel, is binding, not only as to every question actually presented and considered and as to which the court rested its decision, but also to every question which might have been presented and decided, does not apply to a different cause of action between the same parties except as to questions shown to have been actually decided in the former action. Stroup v. Pepper, 69 Kan. 241, 76 P. 825; and Topeka State Bank v. Waters, 121 Kan. 126, 245 P. 1028.

The former litigation between the parties was during the primary term of the lease and at that time it was not anticipated that there would be a controversy concerning the option provisions in the lease. At the time the former action was pending it was not even known whether the appellant in this action would desire to exercise his option under the provisions of the lease. Courts will not express an opinion upon an abstract question which does not arise on existing facts or rights, or where it is sought merely to obtain the opinion of the court upon a question of law. Duggan v. City of Emporia, 84 Kan. 429, 114 P. 235, and cases cited therein. We have no hesitance in holding that the former action is not a bar to the controversy presented in this action.

Appellant in his brief makes the observation that the provision of the lease above designated as number was taken entirely from a farm lease form in general use among the attorneys in Rooks County, and attaches a copy of such lease form as an appendix to his brief. The clause in question is the seventh paragraph in this form lease and a comparison of the first few paragraphs of the lease in question indicates that the form lease was apparently used as a model by the scrivener in other respects. Appellant asserts that courts generally hold when a lease contains in the printed part a covenant to surrender at the end of...