Powell v. Cannon

WHITE, P. J.

Plaintiff-respondent was the lessee under a lease and extension thereof in which defendants-appellants were lessors. The original lease was for a term of three years commencing August 5,1949, and therefore expiring in August of 1952. On September 10, 1951, the parties entered into an extension agreement, reciting that “by mutual agreement of all parties concerned, the above mentioned lease is extended until August 4, 1956, provided all conditions of the original lease are met,” and containing other provisions not material to the determination of this cause. On April 18, 1952, the lessors gave written notice that they had decided to “turn over” the property to a Mr. Warren. The notice further stated: “Due to the fact that you have defaulted on your lease, by nonpayment of rent, we hereby give you notice to

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make other arrangements on or before August 4,1952, at which time we will turn the building over to Mr. Warren.” Plaintiff thereupon brought an action for declaratory relief and injunction. After trial before the court without a jury it was adjudged “That the written extension of lease made by plaintiff and defendants dated September 10,1951, at all times since the making and execution thereof has been and is now valid and in force and binding upon plaintiff and defendants and extended and does extend said original lease according to the terms of the said written extension of lease.” Defendants appeal from the judgment. The attempted appeal from the denial of a new trial must be dismissed, as no appeal lies from such order.'

The trial court found that the plaintiff had under the original lease usually made the rental payments due on the 5th of each month anywhere from 10 days to two weeks later than the date specified in the lease but that the late payments were received by defendants without objection until the giving of the notice on April 18, 1952. When the notice was given, plaintiff was in default for the months of January and April, 1952. After receipt of the notice on April 19, 1952, plaintiff, on the following Monday, April 21, paid to defendants the overdue rentals, which were received by defendants without objection or reservation. The trial court further found “That the delay in payment of the said rent was consented to by defendants and plaintiff was not in default at any time in payment of rent or under any of the terms of the said lease.”