Vinyard v. Republic Iron & Steel Co.

• Decision Date: 27 January 1921
• Docket Number: 6 Div. 197
• Court: Alabama Supreme Court
• Parties: VINYARD v. REPUBLIC IRON & STEEL CO.

87 So. 552

205 Ala. 269

VINYARD v. REPUBLIC IRON & STEEL CO.

6 Div. 197

Supreme Court of Alabama

January 27, 1921

Appeal from Circuit Court, Jefferson County; Dan A. Green, Judge.

Action in unlawful detainer by the Republic Iron & Steel Company against J.W. Vinyard to recover possession of a house and lot after termination of the lease under which defendant took and held possession. Judgment for plaintiff, and defendant appeals. Affirmed.

Even if an exaction of excess rent for two months was not assented to by the lessee, the overcharge was not a repudiation of the lease by the lessor, and at most gave the lessee right to claim restitution in some proper way, not a right to resist an action of unlawful detainer after due termination of the lease by the lessor by proper notice.

The municipal court of Birmingham rendered judgment for the plaintiff, and the defendant took an appeal to the circuit court. In the circuit court the plaintiff refiled its original complaint and added thereto a claim: (1) Attorney's fees of $25 for prosecuting the suit in the municipal court; (2) attorney's fees of $50 for prosecuting the suit in the circuit court; and (3) $15 for liquidated damages for use and occupation after defendant's refusal to surrender possession on demand--each of said claims being based upon pleaded provisions alleged to be contained in the contract of lease. Defendant demurred to the amended complaint, directed against the several claims for damages, and, the demurrer being overruled, cause was tried by the court without a jury. Plaintiff's witness Meagher testified in substance that he was general superintendent of plaintiff's mine at Sayreton, with general charge of the mine, and the employees and the renting of houses to the employees; that defendant was an employee of plaintiff company, on March 1, 1920; that witness executed said lease as agent for plaintiff and defendant executed it for himself, in witnesses' presence; that defendant took possession under the lease of the premises described in the lease and paid as rent the price stipulated in the lease; that defendant went out on a strike, and left plaintiff's employment on May 8, 1920 and has not been in its employment since; that said rented house is the property of the plaintiff company and is located at Sayreton. Plaintiff then offered in evidence the contract of lease which, omitting several irrelevant parts, is as follows:

"Republic Iron & Steel Company, lessor, hereby leases to the undersigned lessee herein house No. 156, being part of the property of lessor at Sayreton, Alabama, county of Jefferson, Alabama (hereinafter known and designated as said premises), on the following terms and conditions:

"Lessor leases and rents said premises to lessee for and during the term of one year from the date of the execution hereof, and from year to year hereafter. Lessee agrees to pay to lessor rent for said premises at the rate of $72 per annum, payable $6 per month in advance, on the 1st day of each calendar month. This lease is entered into by lessor because of the employment by lessor of lessee and for this reason the annual rent is fixed at the sum named herein, and it is expressly agreed between lessor and lessee that the reasonable rental value of said premises is treble the amount herein agreed to be paid.

"And if lessee should at any time be discharged with or without cause from the service of lessor, or voluntarily quit the service of lessor, or decline or refuse to perform the work for which said lessee is employed, or the lessor for any reason desires possession of said premises; in either of said events lessor shall have the right to terminate this lease and reenter upon and take possession of said premises, upon one day's written notice to vacate said premises, either given to the lessee in person, or by leaving a copy of said notice upon said premises.

"Upon such termination of the lease, lessee shall only be liable for the rent to the date of its termination, and if rent has been collected beyond that date, it shall be refunded to the lessee upon his demand, provided he vacates said premises according to said written notice, and by failing to so vacate he agrees to forfeit said rent.

"It is understood and agreed that the premises rented are a part of the plant facilities of the lessor, and the failure to have said premises for the occupation by the employees of the lessor would entail upon the lessor great loss.

"It is therefore further agreed between the lessor and the lessee that, should the lessee fail to vacate said premises in accordance with said written notice he will pay and does hereby agree to pay (in addition to any penalty that is now or may hereafter be provided by law) to the lessor, as liquidated damages, a sum equal to treble the rent for the time thereafter that the lessor is kept out of the possession of said premises, said liquidated damages to be due and payable daily by the lessee at the office of the lessor, without demand, said demand therefor being expressly waived by lessee.

"In the event of the employment of an attorney by the lessor on account of the violation by lessee of any of the conditions of this lease, or for the collection of rent, or for enforcing the rent lien, or for the purpose of securing possession of said premises by unlawful detainer or other legal action, lessee agrees to pay a reasonable attorney's fee, which shall become a part of the debt hereby evidenced, and shall be included as damages in such judgment as may be rendered against lessee. And it is further agreed between the lessor and lessee that $25 is a reasonable attorney's fee for bringing and prosecuting to judgment in a court of a justice of the peace or court of like jurisdiction an unlawful detainer suit for possession of said premises, and that in the event of an appeal from a judgment rendered in the justice court or court of like jurisdiction to the circuit court, that $75 is a reasonable attorney's fee for prosecuting or defending successfully said appeal in said circuit court, and that in the event of an appeal from the circuit court to the Supreme Court of Alabama or other appellate court $100 is a reasonable attorney's fee for prosecuting or defending successfully said appeal to the Supreme Court of Alabama or other appellate court, and that without evidence in relation thereto said judgments may be rendered for the respective services above set forth in the respective amounts above set forth.

"Said lessee waives as to any indebtedness incurred hereunder all right to exemption under the Constitution and laws of Alabama.

"Executed on this the 1st day of March, 1920. _______ Republic Iron & Steel Company.

"By J.G. Meagher, Agent.

"J.W. Vinyard, Lessee."

Plaintiff objected to its introduction on general grounds and also because: (1) It is unilateral and lacking in mutuality with respect to the right of termination given to the lessor exclusively; (2) it is void because it stipulates for a penalty in treble rent in the guise of liquidated damages; (3) it is void, because it does not appear to have been signed by a lawfully authorized agent of the lessor company; (4) it is void as a lease for more than a year and is not subscribed by the party to be charged or by some person by him thereunto lawfully authorized. These objections being overruled the lease was admitted in evidence.

The witness then identified a paper placed in evidence as a copy of the original notice from plaintiff to defendant of plaintiff's election to terminate the lease. This paper was dated October 5, 1920, and demanded the surrender or possession of the premises on or before October 7, 1920. This notice was left on October 5, 1920, with the person found in the house at the time, the defendant himself being absent. This notice was admitted in evidence over defendant's objection. Plaintiff then offered in evidence a copy of the statutory demand for possession.

The witness testified further that the defendant refused to surrender possession, and is still living in the house; that on April 1, and May 1, 1920, plaintiff collected $7 a month as rent, instead of $6 as originally stipulated, and that this was done pursuant to a recommendation by the Bituminous Coal Commission applicable to all employees in connection with the wage increase of 27 per cent. which became effective at that time. The witness further testified that no one for the plaintiff ever consulted with the defendant or spoke directly to him about said increase in rent, but that the change in rent and wages was publicly posted at plaintiff's pay window, and that the $7 for rent was cut from the wages due at the office, which was shown on the statement to defendant, who signed the receipts and statements so showing, for April and May, and that the change in rent and wages was posted, not only at plaintiff's pay window, but also at the commissaries and other important places. Defendant offered no evidence, and the court rendered a judgment for plaintiff for possession of the property sued for, together with $90 as damages, including $75 as attorney's fees in the two courts and $15 for the period of holding over.

Hartley & Fite, of Birmingham, for appellant.

Percy, Benners & Burr, of Birmingham, for appellee.

SOMERVILLE J.

The trial of this cause in the circuit court on appeal was, under our statute, de novo. Code, §§ 4280, 4720; Littleton v Clayton, 77 Ala. 571. This means that, subject only to a restriction of the claim to an amount or value within the jurisdiction of the justice court (Giddens v. Bolling, 92 Ala. 586, 9 So. 274), the trial is had as though the suit originated in the circuit court (L. & N.R.R. Co. v. Lancaster, 121 Ala. 471, 473, 25 So. 733); and a new complaint or an...