Opinion
6 Div. 343.
May 17, 1945.
Appeal from Circuit Court, Blount County; J. H. Disque, Jr., Judge.
J. T. Johnson, of Oneonta, for appellant.
The statutory law of the State which governs and controls the subject matter of a contract made between parties thereto enters into the contract and forms a part thereof the same as if written out in full therein. Cox v. Hutto, 216 Ala. 232, 113 So. 40; Bush v. Greer, 235 Ala. 56, 177 So. 341; Birmingham Bar Ass'n v. Phillips, 239 Ala. 650, 196 So. 725. The controlling statute provides that when tenant makes default in any of the terms of the lease, such default gives the landlord the right to terminate the lease on giving the notice required. Code 1940, Tit. 31, § 6; Myles v. Strange, 226 Ala. 49, 145 So. 313; Garrett v. Reid, 244 Ala. 254, 13 So.2d 97; Frahn v. Greyling Real. Co., 239 Ala. 580, 195 So. 758. Default is failure on part of one of contracting parties to perform his part of contract. 26 C.J.S., Default, p. 664. Terms of the contract whereby party agrees to pay rents at rate of $40 per month, payable monthly, means it is payable within the month. 41 C.J. 211. Notice to terminate after default followed by notice to deliver possession effectually terminates lease and entitles landlord to maintain action for recovery of possession. Hackney v. Griffin, 244 Ala. 360, 13 So.2d 772; Garrett v. Reid, 244 Ala. 254, 13 So.2d 97. While default, alone, in payment of rent as provided by lease does not of itself forfeit the lease and entitle landlord to re-enter, yet when tenant has made default in payment of rent and landlord gives ten days' notice as provided by Code, Tit. 31, § 6, and follows this with notice to surrender possession as provided by § 967, Tit. 7, as was done, the landlord is entitled to maintain his action for unlawful detainer or for holding over. Myles v. Strange, supra; Hackney v. Griffin, supra; Garrett v. Reid, supra; Moss v. Hall, 245 Ala. 612, 18 So.2d 368. The only instance in which the court may direct a verdict in favor of defendant is where there is no evidence tending to establish plaintiff's case. McMillan v. Aiken, 205 Ala. 35, 88 So. 135; Gulf City Con. Co. v. L. N. R. Co., 121 Ala. 621, 25 So. 579; Morgan Hill Pav. Co. v. Thomas, 223 Ala. 88, 134 So. 480.
R. G. Kelton, of Oneonta, for appellee.
Even though lease authorizes landlord to take possession of premises for failure to promptly pay rent a demand for payment of rent is a prerequisite to giving of notice that landlord has elected to declare lease forfeited. First Nat. Bank v. Carter, 231 Ala. 268, 164 So. 388; Shell Petroleum Corporation v. Gowan, 240 Ala. 497, 199 So. 849; 32 Cent. Dig., p. 1230, § 1172; 36 C.J. 599. In absence of lease provision, nonpayment of rent does not work forfeiture and confers no right of re-entry upon landlord. Myles v. Strange, 226 Ala. 49, 145 So. 313; Shell Petroleum Corp. v. Gowan, supra; 36 C.J. 598; 16 R.C.L. 1126, § 982. When plaintiff fails to make out his case there is no prejudicial error in directing a verdict for defendant without written request. O'Bar v. So. Life H. I. Co., 232 Ala. 459, 168 So. 580; Christian v. Stith Coal Co., 189 Ala. 500, 66 So. 641; Bedsole v. Davis, 189 Ala. 325, 66 So. 491.
On June 23, 1942, under a written lease, M. Denton leased to Mrs. Ida Bains (appellee) a certain store building in Oneonta, Alabama, the rent to be at the rate of forty dollars per month, payable monthly. The lease, among other things, provided for renewal of the lease on the same terms for an additional period of five years. There is no provision in the lease giving the landlord the right of re-entry or the right to declare the lease forfeited on the failure to pay the rent.
While the lease was in force, J. H. Hyde (appellant) purchased the property embraced in the lease from M. Denton and received from him transfer of the lease on January 28, 1944. Appellant made no demand on appellee at any time for payment of rent. The January rent was not paid promptly when due on February 1, 1944, nor were rents for subsequent months paid. Such rents have, however, been tendered into court.
About the middle of February, 1944, appellant and appellee had a conversation in which appellant offered appellee $500 to move. Appellee stated that she would let appellant know. The next day appellant told appellee the offer was off. On March 9, 1944, appellee was served with a written notice from appellant that appellant elected to terminate the lease and demanded possession of the premises within ten days from date. On April 11, 1944, appellee was served with a written notice from appellant in substance that since appellee's right of possession had terminated, demand was made for surrender of full possession of the premises within ten days from date.
Appellant instituted suit against appellee for possession of the premises. At the conclusion of the evidence, which has been substantially stated above in its material aspects, and all of which was introduced by the plaintiff, the defendant moved to exclude the evidence. The court granted the motion and directed the jury to find for the defendant. There was verdict and judgment for the defendant. Hence this appeal.
It is evident that the plaintiff in the trial of the case, although the term of the lease had not expired, relied upon the failure of the defendant to pay the rent promptly, as the basis for declaring the lease terminated and demanding possession of the premises. However, the evidence shows that the lease in effect between the parties contains no agreement, providing that nonpayment of rent authorizes termination of the lease and confers upon the landlord the right of re-entry. This is an omission in the provisions of the lease fatal to plaintiff's case. "In the absence of a provision to such effect in the lease, nonpayment of rent does not as a general rule work a forfeiture, and hence confers no right of re-entry." Myles et al. v. Strange, 226 Ala. 49, 145 So. 313; DeSoto Falls Development Co. v. Libby, 231 Ala. 507, 165 So. 763. In referring to what is now § 6, Title 31, Code of 1940, this court in Myles et al. v. Strange, supra, said: "The default therein referred to, of course, means a default which justifies the termination of the possessory right under the contract." As pointed out, the lease in the present case contains no clause which justified termination of the possessory right under the lease.
Does § 35, Title 31, Code of 1940, which was a part of the Act adopted in 1932, change the situation? It clearly does not. The demand provided by this section is expressly predicated on holding over by the tenant after expiration of the term of the lease or after the tenant's "right of possession has terminated or been forfeited." There is nothing which makes nonpayment of rent a ground for forfeiture or re-entry. Shell Petroleum Corporation et al. v. Gowan et al., 240 Ala. 497, 199 So. 849. See also Garrett v. Reid, 244 Ala. 254, 13 So.2d 97.
Plaintiff failed to make out his case. Accordingly it was not prejudicial error for the court to direct a verdict for the defendant without written request. O'Bar v. Southern Life Health Ins. Co., 232 Ala. 459, 168 So. 580.
In view of the conclusions reached, it is not necessary to consider other questions. The lower court was not in error.
Affirmed.
GARDNER, C. J., and THOMAS and FOSTER, JJ., concur.