CHARLES f. CLAIBORNE, JUDGE.
This is a suit for rent. It is based upon the following lease:
Jacob Steckler hereby leases to People's Housewrecking Co. the unimproved real estate Ho. 1123-25 Girod Street for the term of twelve months commencing on the first day of June 1917, and ending on the thirty-first day of Kay 1918.
xxx "It is hereby understood and agreed that unless the lesseó notifies the lessor of its intention in writing on or before December 20th, 1917 of its declaration not to renew this lease, the said lease will become ipso facto renewed and operative for an additional year, commencing June 1st,1918 and ending May 31st, 1919, at a monthly rental of Thirty dollars, upon same terms and conditions specified herein, xxx Should the lessee at any time fail to pay the rent punctually at maturity, as stipulated, the rent for the whole unexpired time of this lease shall, without putting said lessee in default, at, once become d„0 ;n exic-ible, and in case of suit the said lessee shall pay as counsel fees an additional sum of ten per cent on the amount so due and exigible".
"Sif-ned" People's Houbb Wrecking Co.,
Henry B. Eoicers, Pres."
The plaintiff averiad
"tnat the lessee, the defendant herein failed to notify him on or before December 20th, 1917 of its intention not to renew the said lease, and that, therefore, said lease became, ipso f,oto, renewed and operative, for an additional year com:encinf June 1st, 1918";
that trie rent for the six months of June, July, August, September, October, and November, 1918 t $30 por month, or $180, is now dun [479]*479and unpaid, and under the terms of the lease- the rent for the remaining six months ending May 31st, 1919 is also due, making in all $360 with ten per cent attorney's fees.
In a supplemental petition the plaintiff averred that the defendant was not a corporation and he prayed for judgment against Henry B. Eckers,
Henry B. Eckers admitted that the People's Housewreck-ing Co. was not incorporated, and that he had signed the lease, but denied all the other allegations; he averred
"that he sent written notice to plaintiff of his intention not to renew the lease sued upon; that the said notice was written on the 15th day of December 1917 ahd put into a mail box dn the same day said notice was written; that the said letter of notification was addressed to plaintiff at his residence in the City of New Orleans, and was sent in an envelope with defendant's name and address on the corner of the said envelope; that said notice was written and sent after defendant herein had verbally notified plaintiff of his intention not to renew the said lease; that the son and agent of plaintiff subsequently brought notes for defendant to sign which he refused to do whereupon the said agent of plaintiff admitted that he had knowledge that defendant had declared his intention not to renew the lease".
Some months after this answer was made, the defendant filed an exception of no cause of action on the ground that the lease had never been signed by plaintiff and that, therefore, there was no mutual assent binding on both parties.
This exception does not appear to have been considered by the trial judge, and he rendered judgment in favor of the plaintiff against the defendant as prayed for.
The reasons for judgment were as follows:
"The defendant representing himself to be a corporation known as "The People's House V/recking Co'.' leased the property herein described for a term of 12 months at $2b per month. The written lease contained a stipulation that at the end of the year the lease would automatically renew itself unless defendant notified plaintiff in [480]*480writing to the contrary. The defendant attempted to prove that this notice was written and nailed, and that the lease was not extended for the additional year. This burden is carried by defendant, and he avers that the notice was nailed. The plaintiff denied postively its receipt and I see no reason to doubt it.- The law requires it to be delivered in accordance with the contract and the mailing alone is insufficient. Judgnent for plaintiff".
It is not essential that the lessor’s consent to the lease be shown by his signature or other writing. A lease nay be verbal. C. C., 2683 (2653).
"Assent to contracts which the law does not require to be in writing is implied when manifested by actions". 2 H.D. 1002No, 22, C. C.. 1811 (1805); 122 La., 667; 33 Dalloz p 78 & 106; 24 Demol & 54; 15 Laurent a 482.
"A party need not accept a contract expressly or by his signature; he does so by availing himself of its stipulations". 2 H. D., 1002 No. 16.
The acceptance of a mortgage may be shown'outside of the act. 1 H. D., 938 No. 3; 35 A., 455.
Sven in sales of immovables the vendaste consent nay be shown otherwise than by his signature. 2 H. D., 1327 Nos. 4, 14; 35 A., 850; 116 La., 941; 140 La., 431.
A mandate acted upon is equivalent to an acceptance in writing. C. C., 1816 (1810); C. C., 2989 (2958); Pothier No. 32; 21 Baudry-Lac p 244 & 497; 24 Demol & 56.
In this case, in accordance with the lease, the lessee signed and delivered to the- lessor twelve notes representing the first year'3 rent. This constituted an assent to the lease and
"the entire contract between the debtor and the creditor". Ells vs Sims, 2 A., 251 (254).
A famil iar example of an acceptance of a contract is to sue upon it, as the lessor did in this case. 7 A., 349; 15 A., 428; 122 La., 667.
The defendant is not in a position to deny the lease, as in his answer he admitted it.
[481]*481The defendant offered in evidence the following letter:
New Orleane, La., Dec. 15th, 1917.
Mr. Jacob Steckler,
1903 Robert St.
Dear Sir:
This will notify you that on and after May 31 - 18 we will canoel lease of ground No. 1123-1125 Girod St. which we have on rent at present.
Yours truly,
People's House Wrecking Co.
per Henry B. Eckers;
Henry B. Eckers testified that he caused the above letter to be type-written by his son; that he signed his name to the carbon copy and put it into an envelope addressed to the plaintiff and on the same day dropped it into a nail box, at the corner of Julia and Baronne Streets; he kept the original which is the one offered in evidence; upon the left hand corner of the envelope was the business card of the People's House Wrecking Co.; Mrs. Steckler rang him up about the rent; he told her that he had notified Mr.Steckler by mail that he was going to cancel the lease at its expiration, and not renew it; Mr. Steckler's son brought him a dozen notes to wign for the renewal of the lease; he told him he would not sign than as his intention was to leave the place; the son said/iPpj^-»^ /
"1 will leave the notes, you may change your mind and renew the lease";
these notes are still in defendant's possession.
J. W.
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CHARLES f. CLAIBORNE, JUDGE.
This is a suit for rent. It is based upon the following lease:
Jacob Steckler hereby leases to People's Housewrecking Co. the unimproved real estate Ho. 1123-25 Girod Street for the term of twelve months commencing on the first day of June 1917, and ending on the thirty-first day of Kay 1918.
xxx "It is hereby understood and agreed that unless the lesseó notifies the lessor of its intention in writing on or before December 20th, 1917 of its declaration not to renew this lease, the said lease will become ipso facto renewed and operative for an additional year, commencing June 1st,1918 and ending May 31st, 1919, at a monthly rental of Thirty dollars, upon same terms and conditions specified herein, xxx Should the lessee at any time fail to pay the rent punctually at maturity, as stipulated, the rent for the whole unexpired time of this lease shall, without putting said lessee in default, at, once become d„0 ;n exic-ible, and in case of suit the said lessee shall pay as counsel fees an additional sum of ten per cent on the amount so due and exigible".
"Sif-ned" People's Houbb Wrecking Co.,
Henry B. Eoicers, Pres."
The plaintiff averiad
"tnat the lessee, the defendant herein failed to notify him on or before December 20th, 1917 of its intention not to renew the said lease, and that, therefore, said lease became, ipso f,oto, renewed and operative, for an additional year com:encinf June 1st, 1918";
that trie rent for the six months of June, July, August, September, October, and November, 1918 t $30 por month, or $180, is now dun [479]*479and unpaid, and under the terms of the lease- the rent for the remaining six months ending May 31st, 1919 is also due, making in all $360 with ten per cent attorney's fees.
In a supplemental petition the plaintiff averred that the defendant was not a corporation and he prayed for judgment against Henry B. Eckers,
Henry B. Eckers admitted that the People's Housewreck-ing Co. was not incorporated, and that he had signed the lease, but denied all the other allegations; he averred
"that he sent written notice to plaintiff of his intention not to renew the lease sued upon; that the said notice was written on the 15th day of December 1917 ahd put into a mail box dn the same day said notice was written; that the said letter of notification was addressed to plaintiff at his residence in the City of New Orleans, and was sent in an envelope with defendant's name and address on the corner of the said envelope; that said notice was written and sent after defendant herein had verbally notified plaintiff of his intention not to renew the said lease; that the son and agent of plaintiff subsequently brought notes for defendant to sign which he refused to do whereupon the said agent of plaintiff admitted that he had knowledge that defendant had declared his intention not to renew the lease".
Some months after this answer was made, the defendant filed an exception of no cause of action on the ground that the lease had never been signed by plaintiff and that, therefore, there was no mutual assent binding on both parties.
This exception does not appear to have been considered by the trial judge, and he rendered judgment in favor of the plaintiff against the defendant as prayed for.
The reasons for judgment were as follows:
"The defendant representing himself to be a corporation known as "The People's House V/recking Co'.' leased the property herein described for a term of 12 months at $2b per month. The written lease contained a stipulation that at the end of the year the lease would automatically renew itself unless defendant notified plaintiff in [480]*480writing to the contrary. The defendant attempted to prove that this notice was written and nailed, and that the lease was not extended for the additional year. This burden is carried by defendant, and he avers that the notice was nailed. The plaintiff denied postively its receipt and I see no reason to doubt it.- The law requires it to be delivered in accordance with the contract and the mailing alone is insufficient. Judgnent for plaintiff".
It is not essential that the lessor’s consent to the lease be shown by his signature or other writing. A lease nay be verbal. C. C., 2683 (2653).
"Assent to contracts which the law does not require to be in writing is implied when manifested by actions". 2 H.D. 1002No, 22, C. C.. 1811 (1805); 122 La., 667; 33 Dalloz p 78 & 106; 24 Demol & 54; 15 Laurent a 482.
"A party need not accept a contract expressly or by his signature; he does so by availing himself of its stipulations". 2 H. D., 1002 No. 16.
The acceptance of a mortgage may be shown'outside of the act. 1 H. D., 938 No. 3; 35 A., 455.
Sven in sales of immovables the vendaste consent nay be shown otherwise than by his signature. 2 H. D., 1327 Nos. 4, 14; 35 A., 850; 116 La., 941; 140 La., 431.
A mandate acted upon is equivalent to an acceptance in writing. C. C., 1816 (1810); C. C., 2989 (2958); Pothier No. 32; 21 Baudry-Lac p 244 & 497; 24 Demol & 56.
In this case, in accordance with the lease, the lessee signed and delivered to the- lessor twelve notes representing the first year'3 rent. This constituted an assent to the lease and
"the entire contract between the debtor and the creditor". Ells vs Sims, 2 A., 251 (254).
A famil iar example of an acceptance of a contract is to sue upon it, as the lessor did in this case. 7 A., 349; 15 A., 428; 122 La., 667.
The defendant is not in a position to deny the lease, as in his answer he admitted it.
[481]*481The defendant offered in evidence the following letter:
New Orleane, La., Dec. 15th, 1917.
Mr. Jacob Steckler,
1903 Robert St.
Dear Sir:
This will notify you that on and after May 31 - 18 we will canoel lease of ground No. 1123-1125 Girod St. which we have on rent at present.
Yours truly,
People's House Wrecking Co.
per Henry B. Eckers;
Henry B. Eckers testified that he caused the above letter to be type-written by his son; that he signed his name to the carbon copy and put it into an envelope addressed to the plaintiff and on the same day dropped it into a nail box, at the corner of Julia and Baronne Streets; he kept the original which is the one offered in evidence; upon the left hand corner of the envelope was the business card of the People's House Wrecking Co.; Mrs. Steckler rang him up about the rent; he told her that he had notified Mr.Steckler by mail that he was going to cancel the lease at its expiration, and not renew it; Mr. Steckler's son brought him a dozen notes to wign for the renewal of the lease; he told him he would not sign than as his intention was to leave the place; the son said/iPpj^-»^ /
"1 will leave the notes, you may change your mind and renew the lease";
these notes are still in defendant's possession.
J. W. Eckers, son of defendant, testifies that he wrote the above letter at his father's dictation on December 15th; that his father signed the carbon copy and mailed it on that day to the plaintiff in an envelope with defendants card printed upon it addressed to the plaintiff, 1903 Robert Street.
Jacob Steckler swears that he did not receive any notice from the defendant of his intention not to renew the lease.
William Stecklef, son of plaintiff, testifies that he did not receive any notice from the defendant that he would not renew the lease; some time in January, 191? he took twelve notes and a lease to the defendant's office; he was not in; he left the notes with his son; some time after
[482]*482"he (defendant) said he would let it lay over for some time as they were negotiating for property elsewhere; "the property is still vacant; when he left the notes there, he did not say "nay be you would change your mind"?
Mrs. Jacob Steckler testified that they were living in the latter part of 1917 at 1903 Robert Street; that they did not receive any lejter from the defendant Company or from Henry B.Eckers regarding the lease of the property 1123-1125 Girod Street; that she received the mail; Mr. Eckers did not telephone to her that he was not going to renew the lease.
As the burden of proof, was upon the defendant to establish that he had notified the plaintiff of his "intention not to renew the lease", we think he has failed to do so.
William Stickler and Mrs. Jacob Steckler both deny his statements concerning a verbal notice that he did not intend to renew the lease. Not only does the testimony of these two witnesses nullify the testimony of the defendant, but his testimony upon this point was subject to objection; the contract requirement of "writtetf notice" was stipulated for the very purpose of avoiding this clash between the witnesses. The mere mailing of the letter containing the notice that the defendant did not intend to renew the lease, constituted only a presumption that the letter reached the it would have established the fact in the absence of contradictory testimomy; but the plaintiff and his wife both testified that they had never received any letter of that kind; this testimony destroys the presumption and leaves the defendant without any proof that his letter reached its destination. 2 Texas Appeals, Civil Cases, 463 Mo. Pacific R.Rd. vs Kuthman; Ault vs Interstate Assn., 15 Wash., 627 ( S.C. 47 Pacific 13); Abbott Proof of Facts ( 3 Ed) 665; 141 U. S., 25; 213; Abbott's Trial Bv.. 433, 803.
The clause concerning the renewal of the lease in the absence of notice from the lessee to the contrary is valid. Morris Build'y Co. vs Hughes, 9 Ct. App., 259; 8 Ct. App., 258; 12 Ct. App., 218.
In this oase there is no uncertainty about the clause far a tacit renewal of the lease as there was in Murrell vs Lion, 30 A., 255.
The clause concerning attorney's flies was continued in the renewal lease. 8 Ct., App., 123.
Judgment affiraed.
April 19 th, 1920.