Murrell v. American Railway Express Co.

269 S.W. 293, 207 Ky. 322, 1924 Ky. LEXIS 5

• Court: Court of Appeals of Kentucky
• Decided: May 20, 1924
• Status: Published

Opinions

Opinion op the Court by

Chiee Justice Sampson — •

Reversing.

For several years past the appellant, Mrs. Cornelia R. Murrell, has been the owner of a certain business house in the city of Paducah which she has leased by written contract to appellee, American Railway Express Company, as an office and place of business, for a year at a time, with the privilege of one renewal, reserving a rental of $125.00 per month. ¡One of these written contracts is dated February 24, 1922, and provides:

“To have and to hold the above described premises with the appurtenances unto the company, its successors and assigns for the term of one (1); year from 12 o’clock noon on the 6th day of March, 1922, to 12 o’clock noon on the 6th day of March, 1923.”

In December, 1922, and before the lease mentioned, above had expired, the express company approached the agents of the owner and inquired if it would be permitted to renew its lease, whereupon the agents informed the representatives of the express company that they would inquire of the owner and find out if such a lease could be obtained. A few days later the agents of Mrs. Murrell notified the representatives, of the express company that it could have a renewal of the lease for one year with the privilege of a second year upon the same terms as before, the lease to begin March 6, 1923. On December 29, 1922, the agent of the express company wrote the agent of the owner of the property as follows:

“Referring to our conversation in your office a few days ago relative to the renewal of the lease on our Paducah office, at which time I advised you that we wished to do some interior decorating, and as this work hinges on renewal of lease I should like to have some expression from you in regard to same.

“I believe you agreed to write me after an interview with Mr. Bradshaw, but as yet I have not received your letter. ’ ’

On the 15th of January following the agents of the owner answered by letter as follows:

“Referring to our conversation and to your letter of'December 29th relative to the renewal of the lease on your office at 420 Broadway, we are willing to give you a lease for one year with the privilege of one renewal for the same length of time, on the same terms as those now existing under your present lease.

“If this is satisfactory, please have your home office forward their lease for our signature.”

On or about January 23, 1923, the express company sent to the agents of Mrs. Murrell the usual printed contract properly filled in for a renewal of the lease. This contract was executed by the agents of Mrs. Murrell and returned to the express company some time before the 29th of January. Nothing further was heard from the express company by the lessor’s agents for something more than two weeks. The contract was to be signed by the express company and a copy furnished to the agents of the owner. After waiting for a return of the contract from January 29th until February 15th and not hearing anything Mrs. Murrell decided she would withdraw her proposition to lease the premises to the express company on the terms- set forth in the contract and immediately advised the express company to this effect by letter. Up to this time the express company had not indicated its acceptance of the contract. It was'then holding under the old contract, which extended from March 6, 1922, to March 6, 1923. When the express company received the letter from the owner notifying it that the offer to lease the property for one year had been withdrawn it immediately sent a copy of the contract properly signed to the office of the agents of the owner. This was refused. It was later sent by mail and again refused. The express company was given the privilege of renting the premises from month to month at the price of $125.00, but this proposition it declined to accept and insisted it was entitled to hold for another year under the proposed contract effective from and after March 6, 1923. Upon these facts the learned judge of the ■ McCracken circuit court, to whom both law and facts were submitted, found the defendant express company not guilty of the forcible detainer charged in the writ and entered judgment in accordance with the finding, and this appeal seeks a reversal of that judgment.

The express company sought a renewal of the lease. Mrs. Murrell’s agents, after consulting with her, advised the express company it might have a lease for another year from March 6, 1923, at the price named, with the privilege of one renewal, and directed the express company, if the terms of the proposition were acceptable, to forward a contract for the signature of Mrs. Murrell. This contract came and was signed and returned. To it was attached the printed signature of the “American Express Company, by..............................” (with a blank line), and under the line the words “General Manager.” No name was written upon the line. The contract had not been executed by the express company and the express company was not bound by the contract. The old contract as well as the one now in dispute contained a clause No 8 reading:

“It is understood and agreed between the parties hereto that this lease cannot be renewed, extended, altered or modified as to its terms or conditions by any agent or employe of the American Railway Express Company except upon the written authority of an officer of the company of the grade of superintendent or higher.”

There was some evidence tending to show that the express company did withhold its signature to the lease and the delivery of the contract because of pending negotiations for dissolution of the American Express Company into its several component companies out of which it was organized as a war agency some years before, and that in such emergency the company did not want to have on hands an office building which it did not need and the delivery of the contract was held up by it, awaiting the outcome of such negotiations.

Ordinarily a lease contract, such as the one under consideration, need not be signed by the lessee, but if he accepts it he is bound by it; but where the parties contemplated that the contract is not to become binding upon either until signed by both, the signature of the lessee must be affixed to it before it is binding. Moreover one is not bound by a contract which he signs .unless he delivers it. Elliott on Contracts, in treating of this subject, says: “The technical requirements for the execution of an instrument includes a delivery in addition to signing. So in strictness, it is true that a lease though signed by both parties, does not take effect until it has been delivered.” Elliott on Contracts, 5th edition.

It is the contention of appellee that the contract was signed and in the hands of its local agent at Paducah, ready for delivery at the time it received notice from Mrs. Murrell’s agents that her proposition for renewal was withdrawn, and the contract being signed, the appellee was bound, which also bound the appellant who had theretofore signed. We cannot accept this statement as a sound principle of law. The express company specifically provided in its printed contract that it would not be bound except upon the authority of the superintendent or an official of equal dignity, and the parties contemplated the signature of both to the contract. The express company was to be bound only by the contract when signed both by the lessor and lessee and delivered in duplicate. As a general rule it may be said that one who makes a proposition to lease his property may withdraw the proposition at any time before its acceptance by the proposed lessee, and it may be said that one who takes a contract to execute it but declares he will not be bound by the contract until it is executed and delivered, cannot complain that the proposition to make the contract is withdrawn by the other party before he accepts it by signing the proposed contract and delivering the original or a copy to the other party. Failing to accept the contract proposed by the agents of Mrs. Murrell, according to its terms, by signing it and returning a copy thereof so signed to the agents before the proposition was withdrawn by her, through her agents, the express company forfeited its right to claim the leasehold for the year beginning- March 6, 1923, and the trial court erred to the prejudice of appellant in holding otherwise.

Judgment reversed for proceedings consistent herewith.

Whole court sitting.

Judge Thomas dissenting.