Vizard Invest. Co. v. Mobile Fish & Oyster Co.

SAYRE, J, This appeal involves a construction of section 4273 of the Code reading as follows: “Damages for Detainer after Expiration of Term of Lease. — Any person who, having entered into the possession of lands and tenements under a contract of lease, forcibly or unlawfully retains the possession thereof after the expiration of his term, or refuses to surrender the same on the written demand of the lessor, his agent or attorney, [627] or legal representative, is liable for double the amount of the annual rent agreed to be paid under such contract, and for such other special damages as may be thereby sustained by the party thus unlawfully kept out of possession, to be recovered as now provided by law in actions of unlawful detainer, or by an action at law for damages.” This statute contains apparently two alternatives upon the happenings of which the lessee becomes liable for double the amount of the agreed annual rent, to wit: One, the forcible or unlawful retention of possession by the lessee after the expiration of his term; the other, the refusal to surrender the same on the written demand of the lessor, his agent or attorney, or legal representative. The second alternative is not in express terms limited to happen after the expiration of the lessee’s term, and yet it cannot be for a moment doubted that the expiration of the term in some sort is. necessary to liability in either case. To be noted in the next place is the fact that the double liability is limited to arise after the expiration of the lessee’s term and not otherwise. That the statute is highly penal and is to be construed against liability so far as that may be done consonantly with the language used will not be questioned. In Lykes v. Schuwarz, 91 Ala. 461, 8 South. 71, Stone, C. J., said: “In Ullman v. Herzberg, at the present term [91 Ala. 458, 8 South. 408], we had occasion to interpret section 8391 of the Code of 1886 [section 4273 of the present Code.] Our interpretation of that statute was, that when a tenant, who had entered under a contract of lease, forcibly or unlawfully retained the possession after the expiration of the agreed term,” etc. From this language it seems that the Chief Justice had it in mind that by expiration of the term the statute intended the term nominated in the contract of lease and its termination by the effluxion of time and its own limitation, and not otherwise. It has been so held in respect to similar statutes in other jurisdictions (3 Words and Phrases, 2596), and that, we think, is the proper construction of the statute here. The third count of the complaint as amended shows that the terms of the original contract of lease between defendant and plaintiff’s assignor had not expired when this suit was brought, but that the lease had been terminated by plaintiff’s declaration of a forfeiture in accordance with a provision of the contract. It follows from this that the court correctly sustained defendant’s [628] demurrer to the third count on the ground indicated. Other grounds of demurrer need not be considered. Affirmed. Anderson, C. J., and McClellan and Gardner, JJ., concur.