Bettilini v. H. W. Metcalf Co.

West, J. — This is an action for breach of a covenant to lease from September 29th, 1913 for a period of five years certain premises' known as the Terminal Hotel in the City of Jacksonville. The parties will be given the — 590 — same designation in this opinion that was given them in the court below. The lease was made by the plaintiff to the assignor of the defendant, but it is expressly provided therein that the term lessee employed in the lease shall include his executors, administrators and assigns. Before the expiration of the five-year period for which the lease was made, notice was given by the lessee to the plaintiff calling attention to the occurrence of the contingency upon the happening of which the lessee was given the option to terminate the lease and of his election so to do. This notice was as follows: “Referring to lease bearing date September 29, 1913, between yourself as Lessor, and Harry W. Metcalf, of Jacksonville, Florida,, as Lessee, covering that certain property formerly known as Bettelini’s Hotel, now known as the Terminal Hotel, numbered 1023 to 1035 (both inclusive), West Bay Street, in the City of Jacksonville, Duval County, Florida, situated at the North East Corner of Bay and Jolmston Streets together with an alley which opens on Bay Street and adjoins the East side of said store numbered 1023 West Bay Street, which alley is of the even width of about three feet, and runs from Bay street, back, adjoining said store, the entire length of the said store; said lease covering said property for a period of five years from the 1st day of October, 1913, at a specified monthly rental of Eight Hundred ($800.00) Dollars, I beg to eall.your attention to that certain clause on page 2 of said Lease, reading as follows: “ 'It is hereby understood and agreed that in the event of the passage or enactment of any law of the State of — 591 — Florida, dispensary or otherwise,, prohibiting or otherwise curtailing the sale of liquors in the City of Jacksonville, County of Duval, State of Florida, this lease shall then become null and void at the option of said lessee, and in that event the said lessee is hereby released from auy liability herein from the date such laws shall become effective.’ “I beg to further call your attention to Chapter 6860 (No. 54), Laws of Florida, passed at the 1915 session of the Legislature, same being entitled. “ £AN ACT to Eegulate the Sale or Furnishing of Intoxicating Liquors, Wines or Beer, and Prescribing a Penalty for the Violation of certain of its Provisions, and Eepealing laws in Conflict herewith,’ which said Law becomes effective at midnight of the night of September 30, A. D. 1915. The law enacted by the Florida Legislature at its 1915 session as aforesaid, same being otherwise known as the Davis Package Law,, 'prohibits or otherwise curtails the sale of liquors in the City of Jacksonville, Duval County, Florida,’ within the meaning of that Paragraph of the Lease above quoted, and I hereby exercise my option to declare said Lease null and void from the date said Law becomes effective, to wit; at Midnight of the night of September 30th, A. D. 1915, and accordingly notify you I shall from the date said law so becomes effective, treat said lease as null and void under and by virtue of the aforesaid provisions in the Lease. ''This' notice is given you in order that you may be fully advised of my intentions to so exercise my option to declare said Lease void.” To this notice was appended the following, which was signed by the defendant: — 592 — “The undersigned corporation, as Assignee of the Lease mentioned and described in the foregoing letter, by its undersigned duly authorized officer, hereby joins in the foregoing Letter and adopts the same as its letter, and likewise elects to declare said Lease null and void from said date, to-wit, at midnight of the night of September 30, A. D. 1915, upon the grounds and for the reasons i-n the aforesaid letter mentioned.” The quoted paragraph of the lease is an accurate copy of such paragraph as it appears in the lease. Upon the giving of this notice the defendant did not surrender the possession of the premises to the lessor, but continued in possession thereof, paying the monthly rental therefor, and thereafter on January 13th, 1916, gave further notice to the plaintiff that it would on the 29th day of February following terminate its tenancy and vacate, surrender possession of and deliver up said premises to the plaintiff or whomsoever she would designate. The plaintiff refused to accept the keys or the surrender of the possession of the premises, whereupon the defendant, on the date upon Avhich it had given notice that it would do so, vacated the property and thereafter refused to pay the rent therefor. All of the foregoing is alleged in plaintiff’s declaration. The declaration was demurred to on various grounds, the demurrer was sustained and plaintiff declining to further plead, final judgment in favor of defendant was entered. To review this judgment writ of error Avas taken from this court. There is no question about the statutes referred to in the notice, herein above set out,, namely, Chapter 6860, Acts of 1915, Laws of Florida, commonly called the Davis — 593 — Package Law, being such a statute as was in contemplation by the parties at the time the lease was made, the passage or enactment of which would give to the lessee the option to continue such lease in effect or to declare it null and void and thus terminate it. But it is contended by plaintiff that the lessee was bound, upon the enactment of this statute, to then* exercise the option given him, and that by his failure to promptly exercise it his right to do was lost. The statute was approved on May 5th, 1915, but by its express terms it did not take effect until midnight on September 30th, 1915. So that, while the notice was given after the passage and approval of the statute, it was given léfore it went into effect. By the contract it was stipulated that the lease should become null and void at the option of the lessee “in the event of the passage or enactment” of such a statute as that described. The term “enactment” might be construed to mean “taking effect” {In re Hendricks, 60 Kan. 796, 57 Pac. Rep. 965) and under that construction the statute would not be considered an “enactment” until the day upon which it took effect. But it is not necessary for the purposes of this case to adopt that construction. It is perfectly clear that the parties in making this contract had in mind a statute that would by its operation and enforcement prohibit or curtail the sale of intoxicating liquors in the City of Jacksonville. The statute under consideration would not so operate until the date prescribed for its taking effect, and before this date the lessee gave the notice copied herein of hi's election under the option given him to terminate the lease by declaring it null and void as of the date of the taking effect of the statute. The lease itself says nothing about the notice which the lessee should give to the lessor of his election — 594 — and since the notice was given before tbe statute went into effect, we can not say as a matter of law that bis delay in doing so until a few days before tbe statute went into effect is so unreasonable ás to result in a loss of bis right to tbe option given him. It is also contended that since the lessee and bis assignee did not surrender or offer to surrender tbe possession of tbe leased premise's at tbe time of bis election to terminate tbe lease,, or upon tbe date that tbe statute authorizing it went into effect, the notice given by him was not sufficient to accomplish that purpose. This, we think, is controlled by the provisions of Section 4, Chapter 5441, Acts of 1905, Laws of Florida, reading as follows: “That when any tenancy shall have been created by an instrument of writing and tbe term for which such tenancy is limited therein shall have expired and tbe tenant shall bold over in tbe possession of said premises without renewing tbe said lease by some further instrument of writing then such bolding over shall be construed to- be a tenancy at sufferance, and tbe mere payment or acceptance of rent shall not be construed to be a renewal of tbe said term, but if such bolding oyer be continued with tbe consent of tbe lessor then such tenancy shall become a tenancv at will under tbe provisions of this act.” Under the lease tbe “term” for which the tenancy was limited was at most five years, but it was, conditioned upon the happening of a stated event and the exercise thereupon of an option given to tbe lessee, subject to a limitation to a shorter period and tbe “term” expired just as effectually upon a proper exercise of the option to terminate it as it would have by lapse of time and tbe expiration of tbe five-year period, tbe regular end of tbe term. — 595 — Upon the expiration of the term in either case the lessee under the express provisions of the statute held over as a tenant at sufferance or a tenant at will, and it was not essential to a proper exercise of the option declaring tne term at an end that the lessee should contemporaneously therewith surrender the possession of the leased premises to the lessor. This .being true, he had the right under the statute to terminate the tenancy by giving the notice which we have seen was given before he vacated the premises on 29th day of February, 1916: There was therefore no error in the order sustaining the demurrer to the declaration or the entry of judgment in favor of the defendant upon plaintiff’s failure to further plead, and the judgment will be affirmed. Browne, O. J., and Taylor, Whitfield and Ellis, J. J., concur.