Williams v. Aeroland Oil Co.

• Citation: 155 Fla. 114,20 So.2d 346
• Parties: WILLIAMS et ux. v. AEROLAND OIL CO.
• Decision Date: 17 October 1944
• Court: United States State Supreme Court of Florida

20 So.2d 346

155 Fla. 114

WILLIAMS et ux. v. AEROLAND OIL CO.

Florida Supreme Court

October 17, 1944

Appeal from Circuit Court, Broward County; George W Tedder, judge.

McCune Hiaasen & Fleming, of Fort Lauderdale, for appellants.

Rogers Morris & Griffis and Dwight L. Rogers, all of Fort Lauderdale, for appellee.

SEBRING, Justice.

This is an appeal brought by plaintiffs below from an adverse order granting motion for new trial after verdict and judgment in favor of the plaintiffs. Several procedural questions are raised by the record. They are not vigorously pressed, however, counsel expressing the hope that this court will consider and dispose of all basic questions raised on appeal, to the end that the controversy between the parties may be expeditiously terminated. We shall follow this course in the interest of saving the parties unnecessarily protracted litigation.

R. E. Williams and wife are the owners of a fully equipped gasoline filling station in Broward County. They leased the property by written lease under seal to Aeroland Oil Company, a Florida corporation for a term of five years from February 1, 1941, at a monthly rental of $175 payable on or before the first day of each month in advance. The lessee went into possession under the lease and paid the monthly installments of rent up to and including the month of March, 1942. During the month of February, 1942, the lessee asked the lessors for a reduction in rents for the remainder of the term, the lessee informing the lessors that it would be unable, because of war conditions, to continue paying the amount of rents stipulated in the lease. Upon refusal of the lessors to grant the reduction, the lessee abandoned the actual physical occupancy of the premises, moved its supplies out of the building, and locked the gasoline pumps and doors of the station but retained the keys. Thereafter during the month of July, 1942 and while rents were in arrears for the payments due beyond the March, 1942, payment, the lessee notified the lessors in writing that it did not intend to further perform the covenants and obligations of said lease.

The present action on the covenant to pay rents was brought by the lessors in the month of December, 1942. The purpose of the litigation was to recover in one suit not only installments of rent past due at the time of institution of suit but also all unmatured installments of rent to become due in the future during the term of the lease. Demurrer to the declaration was overruled. A plea of privilege and pleas going to the merits were filed by the defendant. Demurrer to the plea of privilege and to certain of the pleas to the merits was sustained. The parties went to trial on the declaration and upon plea to the effect that after the abandonment of the actual physical occupancy of the leased premises by the lessee, the lessors resumed possession of the property with the intention of releasing the defendant from its obligation to pay rent and of terminating the lease and discharging the defendant from all obligations thereof. At the trial the verdict was for the plaintiffs, the jury allowing recovery not only for rents past due at time of suit but also for all rents to become due in the future during the term of the lease. Judgment was entered upon the verdict. The defendant filed its motion for new trial and in arrest of judgment. The trial judge entered an order granting a new trial. The appellants have entered their appeal from the order granting new trial pursuant to Section 59.04, Florida Statutes 1941, F.S.A.

The first question goes to the sufficiency of the plea of privilege, wherein the defendant sought the privilege of being sued in Dade County and not in Broward County where the cause of action was maintained. It is said by appellee that the court erred in sustaining demurrer to this plea. We find no error in the ruling. Although the lease was executed in Dade County and the corporation lessee maintained its principal place of business there, the lease was silent as to the place where the rents were to be paid as they accrued. The lessors resided in Broward County. The leased premises were located in Broward County. It is generally held that where there is an express promise to pay, and no place of payment is stipulated, the debtor should seek the creditor unless otherwise agreed. In such case the cause of action accrues where the default occurs, though it be in the county where the plaintiff resides; and the action may be maintained in such county for the defendant's breach. Producers Supply, Inc. v. Harz, 149 Fla. 594, 6 So.2d 375; Baruch v. W. B. Haggerty, Inc., 137 Fla. 799, 188 So. 797; Croker v. Powell, 115 Fla. 733, 156 So. 146. Moreover, in the absence of any stipulation in a lease, or in an agreement auxiliary thereto, fixing the place at which rent shall be paid, it is the rule that it is payable on the premises. 32 Am.Jur. p. 383, § 467; 36 C.J. p. 389, § 1277. There was no error in sustaining the demurrer to the plea of privilege.

The next question is whether an unequivocal, intentional, communicated repudiation, coupled with actual breach, default and refusal to perform, by a lessee in possession of leased premises under written lease which requires the lessee to pay monthly installments of rent in advance during the term, gives to the lessor the right to accelerate all unmatured rent installments and...