{ "id": 1366142, "name": "Felder v. Hall Brothers Company", "name_abbreviation": "Felder v. Hall Bros.", "decision_date": "1921-12-19", "docket_number": "", "first_page": "182", "last_page": "189", "citations": [ { "type": "official", "cite": "151 Ark. 182" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "135 Ark. 531", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1571575 ], "opinion_index": -1, "case_paths": [ "/ark/135/0531-01" ] }, { "cite": "100 Ark.' 565", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1312268 ], "opinion_index": -1, "case_paths": [ "/ark/100/0565-01" ] }, { "cite": "140 Ark. 619", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1594437 ], "opinion_index": -1, "case_paths": [ "/ark/140/0619-01" ] }, { "cite": "44 Ark. 532", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1893377 ], "weight": 2, "opinion_index": -1, "case_paths": [ "/ark/44/0532-01" ] }, { "cite": "93 Ark. 472", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1546889 ], "opinion_index": -1, "case_paths": [ "/ark/93/0472-01" ] }, { "cite": "99 Ark. 193", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1314446 ], "opinion_index": -1, "case_paths": [ "/ark/99/0193-01" ] }, { "cite": "143 Ark. 559", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1589491 ], "opinion_index": -1, "case_paths": [ "/ark/143/0559-01" ] }, { "cite": "134 Ark. 505", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1573274 ], "opinion_index": -1, "case_paths": [ "/ark/134/0505-01" ] }, { "cite": "41 Ark. 532", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1896220 ], "opinion_index": 0, "case_paths": [ "/ark/41/0532-01" ] }, { "cite": "29 L. R. A. (N. S.) 174", "category": "reporters:federal", "reporter": "L.R.A.N.S.", "opinion_index": 0 }, { "cite": "126 N. W. 1083", "category": "reporters:state_regional", "reporter": "N.W.", "opinion_index": 0 }, { "cite": "157 N. W. 708", "category": "reporters:state_regional", "reporter": "N.W.", "opinion_index": 0 }, { "cite": "131 Pac. 130", "category": "reporters:state_regional", "reporter": "P.", "opinion_index": 0 }, { "cite": "186 Pac. 702", "category": "reporters:state_regional", "reporter": "P.", "case_ids": [ 4726654 ], "opinion_index": 0, "case_paths": [ "/mont/57/0093-01" ] }, { "cite": "69 S. E. 843", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "27 Wis. 272", "category": "reporters:state", "reporter": "Wis.", "case_ids": [ 11284657 ], "opinion_index": 0, "case_paths": [ "/wis/27/0272-01" ] }, { "cite": "49 Pac. 260", "category": "reporters:state_regional", "reporter": "P.", "opinion_index": 0 }, { "cite": "63 N. W. 1088", "category": "reporters:state_regional", "reporter": "N.W.", "opinion_index": 0 }, { "cite": "73 N. W. 776", "category": "reporters:state_regional", "reporter": "N.W.", "opinion_index": 0 }, { "cite": "98 Wis. 104", "category": "reporters:state", "reporter": "Wis.", "case_ids": [ 8702179 ], "opinion_index": 0, "case_paths": [ "/wis/98/0104-01" ] }, { "cite": "85 N. W. 199", "category": "reporters:state_regional", "reporter": "N.W.", "opinion_index": 0 }, { "cite": "111 Atl. 193", "category": "reporters:state_regional", "reporter": "A.", "opinion_index": 0 }, { "cite": "99 Mass. 248", "category": "reporters:state", "reporter": "Mass.", "case_ids": [ 2139777 ], "opinion_index": 0, "case_paths": [ "/mass/99/0248-01" ] }, { "cite": "203 Mass. 506", "category": "reporters:state", "reporter": "Mass.", "case_ids": [ 5680382 ], "opinion_index": 0, "case_paths": [ "/mass/203/0506-01" ] }, { "cite": "162 S. W. 539", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "157 Ky. 36", "category": "reporters:state", "reporter": "Ky.", "case_ids": [ 4427272 ], "opinion_index": 0, "case_paths": [ "/ky/157/0036-01" ] }, { "cite": "146 Ark. 94", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1585015 ], "opinion_index": 0, "case_paths": [ "/ark/146/0094-01" ] }, { "cite": "140 Ark. 619", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1594437 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/ark/140/0619-01" ] }, { "cite": "93 Ark. 472", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1546889 ], "opinion_index": 0, "case_paths": [ "/ark/93/0472-01" ] }, { "cite": "99 Ark. 193", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1314446 ], "opinion_index": 0, "case_paths": [ "/ark/99/0193-01" ] }, { "cite": "143 Ark. 559", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1589491 ], "opinion_index": 0, "case_paths": [ "/ark/143/0559-01" ] }, { "cite": "134 Ark. 505", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1573274 ], "opinion_index": 0, "case_paths": [ "/ark/134/0505-01" ] } ], "analysis": { "cardinality": 643, "char_count": 14008, "ocr_confidence": 0.501, "pagerank": { "raw": 1.4394886663749947e-07, "percentile": 0.6528691441084017 }, "sha256": "9beb557b6d5d916ce8b17d1d61c3f8121184360e5576ecb8b760263baa689417", "simhash": "1:5514dd77d36d33cc", "word_count": 2562 }, "last_updated": "2023-07-14T19:18:51.844541+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Felder v. Hall Brothers Company." ], "opinions": [ { "text": "Smith, J.\nThis is an action of unlawful detainer; and while this is the second appeal in the case (Felder v. Hall Bros. Co., 146 Ark. 94), the opinion in the former appeal has no hearing on the issues now presented for decision.\nThe litigation arises out of the construction of a lease contract. Omitting formal parts and certain recitals which admittedly have no bearing on the points in issue, the contract reads as follows:\n\u201cThat the said Jonas Felder and wife hereby lease to said Hall Bros. Co. for a period of eight years beginning January the first, 1912, and terminating Dec. 31, 1919, upon the terms, conditions and stipulations hereinafter set forth, seventy-five acres of land, * * * * known as the Chalmers place.\n\u201c (1). Said party of the second part hereby agrees to pay said first parties the sum of five dollars ($5) per annum for each acre of said land, said rent shall be paid on the first of November of each year.\n\u201c(2). Said second parties shall have the right to renew this lease for the term of ten years from the expiration hereof.\n\u201c(3). Said first parties shall not be required to make any repairs of. any kind or character, but said second party shall keep the fences and improvements on said property in good repair, and shall deliver the same at the expiration of this lease in as good condition as the same is now.\u201d '\nAt the trial the lessor offered testimony to. the effect that the provision in regard to repairs and improvements had not been complied with; and we must assume the testimony would have established that fact, inasmuch as the court took the view that the contract was a present demise for a period of eighteen years, and that failure to repair and keep up the improvements did not warrant the maintenance of this suit, as the contract had not provided for a forfeiture in case of failure to repair and improve, and directed the jury to return a verdict in favor of the lessees.\nWas the court correct in holding the lease contract, set out above, a present demise for a period of eighteen years? and, if not, did the lessees forfeit the right fo renew the lease for the additional term, because of their failure to keep the improvements in good repair?\nAppellees cite and rely upon the case of Neal v. Harris, 140 Ark. 619, as supporting the ruling of the court below and as conclusive of the points in issue.\nThere the clause of the contract construed by the court reads as follows: \u201cSaid party of the first part agrees to give party of the second part the refusal of the above place for the years 1919 and 1920, at the above price, $7 per acre.\u201d\nOur discussion of the subject in that case commenced with the statement that both the textwriters and the adjudicated cases make a distinction between a covenant in a le\u00e1se for a renewal and a provision therein for an extension of the time, at the option of the lessee, and we said: \u201cIn the latter case upon the exercise of the option by the lessee there is granted a present lease for the full term to which it may be extended and not a lease for the lesser period with the privilege of a new lease for the extended term.\u201d In support of this proposition we quoted from Underhill on Landlord and Tenant, \u00a7 803. In further support of that proposition we also cited 16 R. C. L., \u00a7 389, p. 885; Tiffany on Landlord and Tenant, \u00a7 218-219, and pp. 1517-1518; Jones on Landlord and Tenant, \u00a7 340, and 24 Cyc. 1019.\nWe said the rule itself is well settled, and the only difficulty is in the application of it to a given leasa Construing the clause of the lease quoted, we said: <<:So in the present case no new contract was provided for in the lease itself. The formal covenant of renewal usually provides specifically for the execution of a new lease. The extended term in the lease under consideration was fixed by and was a part of the original lease. When the lessee exercised his option and gave the required notice, the parties were bound for the two. additional years.\u201d\nWe think the lease here to be construed is essentially different from the one construed in Neal v. Harris, supra. There the lease contract provided for the refusal for the additional years at the same price. One definition of the word \u201crefusal,\u201d as given in Webster\u2019s New International Dictionary, is: \u201cThe choice of refusing or taking, especially as to a purchase, as, to give one the refusal of a house,\u201d and it was in this sense that the word \u201crefusal\u201d was used in the case of Neal v. Harris.\nHere the language of the parties is that \u201csaid second party shall have the right to renew this lease for the term of ten years from the expiration hereof.\u201d And we think the natural, usual and ordinary meaning of this language is that the contract was to expire in eight years, but might thereafter be renewed for ten years.\nIn the case of Neal v. Harris, supra, there appears, in the paragraph quoted from Underhill on Landlord and Tenant, in support of the proposition that there is a distinction between a covenant in a lease for a renewal and a provision therein for an extension of the term at the option of the lessee, the statement that, \u201cIn the absence of an express provision that a new lease is intended to be executed, the presumption is that no new lease is intended, but that the lessee is to continue to hold under the original lease. The lease must clearly and positively show that the making of a new lease was intended. This must appear from the express, language of the parties. The reason for the presumption is the fact that the making of a new lease will involve trouble and expense which should be avoided by the courts, if possible, unless it is very clear that the parties had expressly agreed to incur such trouble and expense.\u201d\nBut this is stated as a mere presumption, and we did not there recognize the presence or absence of an express provision that a new lease should be written as conclusive of the question. The only comment of this court on that feature of the case was that \u201cthe formal covenant of renewal usually provides specifically for the execution of a new lease.\u201d\nThis contract will be construed for the purpose of extracting the meaning of the parties, and in doing so we will give the language they have employed its usual, customary and ordinary meaning, as there is nothing about the contract, in its entirety, which indicates that it was otherwise used; and, as so construed, we think it appears that the parties contemplated that a new lease would be made at the end of the eight-year period; and, if such is its meaning, then there is, in the case, no question of presumptions,\nIn vol. 1, p. 406, Taylor on Landlord and Tenant, it is said: \u201cAlthough it is held that an additional term, granted under the covenant to renew, is not a new demise, but an extension of the original term, yet, under the ordinary form of lease, there is a distinction between a stipulation to renew the lease for an additional term and a stipulation to extend it for an additional term, since the former requires the making of a new lease, and the latter does not.\u201d\nIn 2 Wood on Landlord and Tenant, \u00a7 413, p. 942, it is said: \u201cA covenant by the landlord to renew the lease for a second term, being a contract to give a new lease, does not give the tenant a right at law to retain possession of the premises demised after the expiration of the original term.\u201d\nA similar statement of the law appears in 16 R. C. L. at \u00a7 392 of the article on Landlord and Tenant. See numerous annotated cases cited in the note to that text.\nIn 24 Cyc. p. 1007, it is said: \u201cA covenant to renew is a covenant to grant an estate. It is not a present demise (as distinguished from a covenant to extend) so as of itself and alone to continue the tenancy for the renewal period, but calls for a new lease, without which the tenant cannot strictly retain possession as against the lessor in a court of law, by relying merely upon the covenant to renew.\u201d\nIn the case of Grant v. Collins, 157 Ky. 36, 162 S. W. 539, the headnote reads: \u201cThere is a distinction between a stipulation in a lease to renew it for an additional term and one to extend it, in that a stipulation to renew requires the making of a new lease, while one to extend does not.\u201d This case is annotated in Ann. Cas. 1915D, page 249.\nIn the case of Leavitt v. Maykell, 203 Mass. 506, the lease there construed contained the clause: \u201cIt is further agreed, in consideration hereof, that the lessees shall have the privilege and right to renew this lease after its expiration, for the further term of two years, upon the same terms and conditions of this lease.\u201d Of this clause the court said: \u201cWe are of opinion that the defendant\u2019s construction of the quoted clause is correct. It gave the lessees a right to have a renewal of the lease for two years more, but without a formal renewal, or something equivalent to it, it did not extend the term through this additional period. In Cunningham v. Pattee, 99 Mass. 248-252, the court said of \u2018renew:\u2019 \u2018The word ex vi termini, imports the giving of a new lease like the old one, with the same terms and stipulations and at the same rent and with all the essential covenants.\u2019 \u201d\nSee also Fair v. Hartford Rubber Works, 111 Atl. 193; Sheppard v. Rosenkrans, 85 N. W. 199; Kol lock v. Scribner, 98 Wis. 104, 73 N. W. 776; Swank v. St. Paul City Ry. Co., 63 N. W. 1088; Strousse v. Bank, 49 Pac. 260; Orton v. Noonan, 27 Wis. 272; Whalen v. Manley, 69 S. E. 843; Drake v. Board of Education, 123 A. S. R. 448; Helena L. & R. Co. v. N. P. Ry. Co., 186 Pac. 702; Howell v. City of Hamburg Co., 131 Pac. 130. Numerous cases, in which the principle under consideration is discussed, are collected in the notes to the annotated cases of Crenshaw-Gary Lbr. Co. v. Norton (72 Sou. 140) L. R. A. 1916-E 1227; Luthey v. Joyce, 157 N. W. 708, L. R. A. 1916-E 1235; and Kuhlman v. W. J. Lemp Brewing Co., 126 N. W. 1083, 29 L. R. A. (N. S.) 174.\nSee also, definitions of the word \u201crenew\u201d in Words and Phrases.\nWe conclude, therefore, that the parties did not contemplate an automatic extension of this lease, but that it might be thereafter extended for a period of ten years, if the lessees so desired, unless they had forfeited their right to this extension.\nIf, as we have concluded, the lease was not a present demise for a period of eighteen years, have the lessees forfeited the right to hold possession of the premises for an additional term, because of the failure to keep the improvements in good repair?\nA consideration of this feature of the case confirms us in the correctness pf the conclusion we have just stated. Eight years, of itself, is a lease of more than \u25a0ordinary length for farming lands; and eighteen years is about the lifetime of ordinary farm improvements. The lease recites that it is \u201cupon the terms, conditions and stipulations hereinafter set forth.\u201d And one of these terms, conditions and stipulations is that the lessees \u201cshall keep the fences and improvements on said property in good repair, and shall deliver the same at the expiration of this lease in as good condition as the same is now.\u201d It will be observed that the lessees are not required merely to deliver the premises, at the expiration' of the lease, in as good condition as the same were at the time the lease was made, but that it was required that they should be kept in that condition during the continuance of the lease. It is conceded that the lessees paid the rent, but we assume for the purpose of this appeal that they did not keep up the repairs. We think it fair to assume that the parties contemplated there would be no default in this respect if the lessees sought to renew the lease, and that they would not seek to exercise that right if they had failed to keep their covenant to maintain the repairs. The case of Jones v. Epstein, 134 Ark. 505, is against the assertion of that right by the lessees under the state of this record. See also, the cases of Hallbrooks v. Rosser, 143 Ark. 559; Tedstrom. v. Puddephatt, 99 Ark. 193; Berman v. Shelby, 93 Ark. 472; Buckner v. Warren, 41 Ark. 532; 16 R. C. L. sec. 194 of the article on Landlord and Tenant.\nThe judgment of the court below will therefore be reversed, and the cause will be remanded for a new trial.", "type": "majority", "author": "Smith, J." } ], "attorneys": [ "H. T. Boleson, B. D. Smith & C. W. Norton, for appellant.", "Daggett dk Daggett, and Mann & McCulloch, for appellees." ], "corrections": "", "head_matter": "Felder v. Hall Brothers Company.\nOpinion delivered December 19, 1921.\n1. Landlord and tenant \u2014 covenant to renew lease. \u2014 A lease for a term of eight years which stipulated that the lessees should \u201chave the right to renew this lease for the term of ten years from the expiration thereof,\u201d contemplated that the lease should expire at the end of eight years, and that thereafter a new lease might be made for ten years.\n.2. Landlord and tenant \u2014 right to renew lease. \u2014 Where a lease for a term of years stipulated that it might be renewed for a further term, and covenanted that the lessee should keep the fences and improvements in good repair and should deliver the same at the expiration of the lease \u201cin as good condition as the same is now,\u201d the lessors had a right to refuse to renew the lease upon the lessee\u2019s failure to keep its covenant to maintain the repairs.\nAppeal from Lee Circuit Court; B. J. Williams, special Judge;\nreversed.\nH. T. Boleson, B. D. Smith & C. W. Norton, for appellant.\nThe use of the words \u201cto renew\u201d in the lease puts it within the line of decisions which requires a new lease. The right to renewal was conditioned on performance by the lessees of their covenants. 134 Ark. 505; 143 Ark. 559; 99 Ark. 193; 93 Ark. 472; 44 Ark. 532.\nDaggett dk Daggett, and Mann & McCulloch, for appellees.\n140 Ark. 619 holds that the lease expressly states that a new lease shall be executed, or1 that the additional term shall be on terms not defined and settled by the original lease, then the provision relative to the additional term will he construed as granting to the lessee the optioii to extend his term.\nBreach of covenant in lease, except covenant to pay rent, is no ground for forfeiture unless lease so provides. 44 Ark. 532; 100 Ark.' 565; 135 Ark. 531." }, "file_name": "0182-01", "first_page_order": 208, "last_page_order": 215 }