Smith v. Shelton, 22584

CourtUnited States State Supreme Court of Mississippi
Writing for the CourtETHRIDGE, J.
Citation128 Miss. 896,91 So. 691
PartiesSMITH v. SHELTON
Docket Number22584
Decision Date15 May 1922

91 So. 691

128 Miss. 896

SMITH
v.
SHELTON

No. 22584

Supreme Court of Mississippi

May 15, 1922


1. LANDLORD AND TENANT. Lease held not to entitle leasee to exercise option to renew after notice to vacate.

Where a landlord leased a place for a fixed period, with a clause providing, "Both the party of the first part and the party of the second part shall notify the other party within sixty days of the termination of the lease if for any reason it cannot be renewed for one or more years," does not give the lessee a right to hold over against notice to vacate, made sixty days before the date of the expiration of the lease; nor does the fact that the lessor wrote a letter, stating that the lessee had an option to renew, give such right, unless exercised before a notice to vacate was given by the lessor.

2. LANDLORD AND TENANT. Lessee, who holds over after expiration of lease notwithstanding notice to vacate, liable for double rent.

Where a person leases a house for a fixed term, and where the tenant is given notice to vacate at the end of his term, but held over, the tenant becomes liable for double rent; and where another lessee is kept out of possession by such wrongful holding over, such latter lessee may recover double rent for the period he is kept out of possession. [128 Miss. 897]

HON. S. F. DAVIS, Judge.

APPEAL from circuit court of Humphreys county, HON. S. F. DAVIS, Judge.

Action by W. S. Smith against W. L. Shelton. Judgment for defendant, and plaintiff appeals. Reversed and rendered.

Judgment reversed.

H. F. Jones, for appellant.

Appellee, in his brief, propounds a question as to the meaning of the language: "Both the party of the first part and the party of the second part shall notify the other party within sixty of the termination of lease if by any reason that it cannot be renewed for one or more years."

Substituting the grammatical word "either" for the word "both," which is an ungrammatical use of the word, and inserting the word "days" after "sixty," we have 'either the party of the first part" and "or the party of the second part shall notify the other party, etc." We have the obvious intent of the parties to the contract, and there is no ambiguity. By no strength of the language can it be interpreted or construed to give any right to the lessee, Shelton, in the property after the expiration of his term.

Appellee further asks the reason for such a clause, but this is aside from the question of construction, however in answer to this query I will say that Edwards doubtless desired to know sixty days before the expiration of the lease whether Shelton would desire to have another lease, so that he might supply another lessee at the expiration of the term. Shelton, on the other hand, doubtless desired to know sixty days before the expiration of the lease if he would have to vacate the property so that he might obtain another garage at the expiration of the lease.

Not a syllable in the contract obligates Edwards to release to Shelton, nor Shelton to release from Edwards. The consequences of a violation of the notice obligation on the part of either may have furnished the basis for a suit for damages, but furnished no obligation on the part [128 Miss. 898] of either to continue the lease, or to renew the contract relative to the property. Nothing is plainer; construction cannot make it plainer; and the construction, if it was construction, made by Edwards in the absence of the contract in his letter to Shelton under date of December 20, 1920, adds nothing to the contract. Edwards was mistaken when he stated that Shelton had sixty days within which to notify him (Edwards) whether he desired to renew the lease at the same price.

Edwards gave the notice required to Shelton, however, so far as the lease between the parties or its legal status goes, the notice was unnecessary to require of Shelton payment of double rent under the statute and the proof in the case. The lease expired on a day fixed by the contract, and no notice was required by the statute to fix double rent upon Shelton for three months he held over after its expiration.

Appellee could claim no advantage on account of the letter above mentioned for the several reasons that he had a copy of the contract, and cannot deny knowledge of its terms; and if the letter proposed other terms than those expresses in the contract, they were without consideration; besides as soon as Edwards learned the true terms of the contract, he notified Shelton to vacate; and after showing him every reasonable consideration and forbearance, he corrected his letter, gave the notice contracted for, within the time, and revoked his written statement before Shelton ever accepted it.

There was no tender of any rent whatever by Shelton to Edwards, he sent some checks which Edwards sent back because he was demanding the double rent provided by law, and to which he, under the law, was entitled. If appellant be a Shylock as briefed by appellee, he may take his pound of flesh without the shedding of Christian blood in so doing, because if fault there is in the demand, it is the fault of the lawmaker, and I find no fault therein, since it is the law of the state, and there is no reason for his taking a pound where he is entitled to two. He was as [128 Miss. 899] diligent as the law required him to be or the contract by which they were mutually bound, there being fully sixty days and more between the date of the notice to Shelton, and the date of the expiration of the term.

The judgment of the court in view of the case of Stollenwerck v. Eure, 81 So. 594, clearly was in error when this cause was dismissed, as proof of the fact that appellee was holding over after the expiration of the term was clearly shown; that he held over for three months, thereby incurring the rental of three hundred dollars and it being shown that appellee's term was set forth in the contract and was well known to him, no notice was required to incur double rent for holding over, and this is true without any regard to the notice provided for under the lease, since such notice had no reference to the term, and obligated neither party to an extension of the term.

Shelton made no tender that amounted to a legal tender of any sum whatever, and is therefore bound for the full amount of single rent, double rent, and all costs herein.

C. M. Murphy, for appellee.

Appellant insists first, in speaking of the Edwards-Shelton lease (page 3, his brief) that: 'The term of lease was specific, clear and not subject to construction, as the terms are very clear and unequivocal. It is for a period of two years dating from April 1, 1919, and therefore expired on April 1, 1921.

And second, he seems to rely upon the proposition that if the interpretation placed upon the contract by Edwards in his letter of December 20, 1920, is binding upon him and he is not entitled to his double rent, then the court erred in...

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3 practice notes
  • Columbus & Greenville R. Co. v. Lee, 26535
    • United States
    • United States State Supreme Court of Mississippi
    • February 27, 1928
    ...how the accident happened, no instruction on the prima-facie statute should be given. G. M. & N. v. Brown, 102 So. 855; Davis v. Temple, 91 So. 691; G. M. & N. R. R. Co. v. Arrington, 107 So. 378; Davis, Director-General v. Elzey, 88 So. 630; Y. & M. V. R. R. Co. v. McCullers, 89 So. 158. T......
  • Pearl River County v. Lacey Lumber Co., 22541
    • United States
    • United States State Supreme Court of Mississippi
    • May 15, 1922
    ...remedy. Since the board of supervisors has disallowed this claim, and it is clear that appellee has a plain, adequate, and speedy remedy [128 Miss. 896] in the ordinary course of law, mandamus will not lie to compel the board to issue a warrant therefor, and we think the demurrer to the pet......
  • Davis v. Temple, 22531
    • United States
    • Mississippi Supreme Court
    • May 15, 1922
    ...when the evidence relative thereto is conflicting." The above instruction as given is without italics. We have emphasized features of the [91 So. 691] instruction that make it an erroneous announcement of the law. The instruction as given has been condemned in substance in Davis, Director G......
3 cases
  • Columbus & Greenville R. Co. v. Lee, 26535
    • United States
    • United States State Supreme Court of Mississippi
    • February 27, 1928
    ...how the accident happened, no instruction on the prima-facie statute should be given. G. M. & N. v. Brown, 102 So. 855; Davis v. Temple, 91 So. 691; G. M. & N. R. R. Co. v. Arrington, 107 So. 378; Davis, Director-General v. Elzey, 88 So. 630; Y. & M. V. R. R. Co. v. McCullers, 89 So. 158. T......
  • Pearl River County v. Lacey Lumber Co., 22541
    • United States
    • United States State Supreme Court of Mississippi
    • May 15, 1922
    ...remedy. Since the board of supervisors has disallowed this claim, and it is clear that appellee has a plain, adequate, and speedy remedy [128 Miss. 896] in the ordinary course of law, mandamus will not lie to compel the board to issue a warrant therefor, and we think the demurrer to the pet......
  • Davis v. Temple, 22531
    • United States
    • Mississippi Supreme Court
    • May 15, 1922
    ...when the evidence relative thereto is conflicting." The above instruction as given is without italics. We have emphasized features of the [91 So. 691] instruction that make it an erroneous announcement of the law. The instruction as given has been condemned in substance in Davis, Director G......

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