SIMMONS v. FARISS

SIMMONS v. FARISS
1955 OK 299
289 P.2d 372
Case Number: 36766
Decided: 10/25/1955
Supreme Court of Oklahoma

G.A. SIMMONS, PLAINTIFF IN ERROR,
v.
E.A. FARISS, DEFENDANT IN ERROR.

Syllabus

¶0 1. A thirty-day notice in writing is sufficient to terminate tenancies at will and tenancies from one period to another of three months or less where rent is payable monthly.

2. Intention of the parties to a contract must be deduced from entire agreement and where contract has several provisions, intention of contracting parties is not to be determined from any single clause or provision, alone, but from every part and provision of it construed together.

[289 P.2d 372]

Appeal from the Court of Common Pleas of Oklahoma County; Carl Traub, Judge.

Action in forcible entry and detainer by E.A. Fariss against G.A. Simmons to recover possession of certain real estate. Judgment for plaintiff and defendant appeals. Affirmed.

Renegar & Renegar, Oklahoma City, for plaintiff in error.

T.K. Quillin and Pat Irwin, Oklahoma City for defendant in error.

[289 P.2d 373] PER CURIAM.

¶1 This action is in forcible entry and detainer on appeal from the Common Pleas Court of Oklahoma County. The trial court held that a thirty-day notice was sufficient to terminate the tenancy and directed a verdict for plaintiff. Defendant appeals. The parties will be referred to as they appeared in the trial court.

¶2 The facts are not in dispute. On March 1, 1946, L.M. Rauch, then owner of a store building at 1606 N. Drexel Blvd., in Oklahoma City, leased it for a period of five years to G.A. Simmons, defendant herein. The lease was in writing and its expiration date was February 28, 1951. The rental of $40 per month was payable monthly.

¶3 In 1948, and while the lease was in full force and effect, Rauch sold the property to E.A. Fariss, plaintiff herein. Defendant occupied the premises during Rauch's ownership and after the sale all rental payments were made to, and accepted by plaintiff.

¶4 When the lease expired on February 28, 1951, nothing was said by plaintiff and defendant, but defendant continued to occupy the premises and pay the rental of $40 per month. On February 19, 1954, defendant contacted plaintiff in an effort to obtain a new lease but they were unable to agree on an increase in the monthly rental. They reached no agreement. On March 1, 1954, the rent for March was paid and accepted. On April 1, 1954, plaintiff served notice on defendant to terminate the tenancy on or before May 1, 1954. On April 12, 1954, plaintiff accepted $40 rent for April. On May 1, 1954, a three-day notice was served on defendant, preliminary to filing this suit.

¶5 Defendant contends that he was a holdover tenant under the written lease, and that when plaintiff accepted rent for March, 1954, he thereby renewed the lease for one year beginning March 1, 1954. This court held otherwise in Stephenson v. O'Keefe, 195 Okl. 28,

¶6 The decision in the Stephenson case, supra, was overlooked in Nichols v. Callaway, 200 Okl. 328,

¶7 The lessor in the Nichols case gave a 30-day notice to terminate the tenancy and tried his case upon the theory that lessee was a tenant at will under

¶8 In the case now before us it is unnecessary to decide whether the conduct of the parties in paying and receiving monthly rental over a period of many months resulted in a tenancy from month to month under

¶9 Defendant cites Wolverton v. Ward, 74 Okl. 40, 176 P. 924, and C.R. Anthony Co. v. Stroud, 189 Okl. 104,

¶10 The decision in Wolverton v. Ward, supra, overlooks the amendment of Sec. 3784, R.L. 1910, by Ch. 64, S.L. 1911, p. 146, now

¶11 In the C.R. Anthony Co. case, supra, plaintiff owned a storeroom occupied by defendant under a one-year written lease. Plaintiff wrote defendant offering to renew the lease for another year at the same rental, and advised defendant that if it did not desire to renew the lease for a year the monthly rental would be larger than specified in the old lease. Plaintiff requested defendant to advise him of its election. Defendant ignored the letter but for several months continued to occupy the building and pay the monthly rental specified in the lease. Defendant's conduct was held to constitute an acceptance of the offer to renew the lease for one year. The C.R. Anthony Co. case is not in point.

¶12 It is next contended by defendant that by the terms of the written lease he was entitled to a 90-day notice to terminate the tenancy.

¶13 The lease was for the term March 1, 1946, to February 28, 1951. Typed in the lease is the following:

"This lease is only subject to cancellation on 90 day written notice by the parties to each other."

¶14 The printed portion of the lease provides:

"It is further agreed, at the end of this lease, or sooner termination thereof, the second party (defendant herein) shall give peaceable possession of the premises. * * * This lease shall not be considered renewed except by agreement of the parties."

¶15 We conclude from an examination of the contract as a whole that the provision for cancellation on 90-day written notice was applicable only during the contract period and was not applicable after the contract expired by its terms on February 28, 1951.

¶16 The judgment of the trial court is affirmed.

[289 P.2d 374]

¶17 WILLIAMS, V.C.J., and CORN, DAVISON, HALLEY, BLACKBIRD and JACKSON, JJ., concur.

¶18 The Court acknowledges the aid of the Supreme Court Commissioners in the preparation of this opinion. After a tentative opinion was written by Commissioner Reed and approved by Commissioners Nease and Crawford, the cause was assigned to a Justice of this Court for examination and report to the Court. Thereafter, upon report and consideration in conference, the foregoing opinion was adopted by the Court.