
    Charlas F. Claiborne, Judg».
    ANTHONY RABITO VS. V. MACALUSO
    No. 7628.
   I f*«l constrained to disssnt from the decision in this case.

The lease sued on vas for three years. It contained the following clause:

"It is understood and agreed that failure of lessee to notify lessor or his agents (in writing) within 30 days of expiration of this lease shall be construed as a renewal of same under such terms and conditions as now enj oyed".

J£y opinion is that this clause means that in the absence of written notice on the part of the lessee to the lessor, the lease would be renewed for another three years from its expiration upon the same terms. Similar clauses are common in many leases; and they mean what they say or they mean nothing. The defendant understood that the clause had that meaning. In his petition in this case the plaintiff makes the following allegation:

"4o That it is stipulated in said lease that should the lessee fail to notify the lessor or his agent in writing, within thirty days of the expiration of the lease, said failure should be construed as a renewal of said lease on the same terms and conditions".

Defendant's answer is as follows:

"Fourth. Defendant admits the facts contained in the Fourth allegation of plaintiff's petition".

Hor did counsel for the defendant deny that such was the meaning of the clause.

The whole defense in this case was pitched- upon the compliance by defendant with the requirements of notice specified in the lease. Defendant, in his answer, admitted every allegation of the petition, except that of indebtedness and want of notice. Upon the last subject he says:

"Purther answering defendant avers that he verbally notified plaintiff of his intention not to renew the lease at its expiration, months before it expired, and then oonplied with the terms of written lease, by giving plaintiff written notice, within the time, and in the mode and manner provided in the lease of his intention not to renew same".

If I am correct in saying that the clause under discussion operated as a renewal of the lease in the absence of a written notice, then the burden of proof was upon defendant to establish the fact of notice. This he has failed to establish to my satisfaction. He says he left a letter to that effect upon a desk at defendant's store, in the presence of a young boy, and in the absence of the plaintiff. He puts two witnesses upon the stand, his employees, to corroborate his testimony. They say they did not enter the store but that defendant left the letter with a man in the store. Plaintiff denied that he ever received such a letter. As that fact was brought out only on the trial of the case, plaintiff asked to be allowed to produce his son who is employed in the store. The Court refused him that,opportunity. Plaintiff's counsel testifies that defendant had told him that he had^sent «^/notice. Defendant has not overcome this denial of plaintiff nor contradicted the testimony of his attorney. Long before this suit was filed, plaintiff asked defendant when and how he had notified plaintiff of his intention not to renew the lease. Defendant refused any information. Upon a matter involving a responsioility of $1440, depending upon the giving of a notice, defendant would have taken greater cafe to protect himself than he says he has exercised in this matter, and would have the evidence of notice certain, as it was his duty to do.

Defendant's alleged notice is type-written,' there is another type-written letter signed by defendant. He says he wrote both. The body of both letters is in perfect English;yet defendant's testimony is in broken English, and his signature to the two letters is in the uncertain handwriting of one who knows only how to sign.

But if I am not correct upon the point of notice, I think plaintiff is entitled to some damages for injury to the property.

Por these reasons I dissent.

Court of Appeal---Parish of Orleans.

By Pinkelspiel- J.

This ia 2 suit on a renewal of lease of premises No. 530 Ursulinas, between Chartres and DeoaSur Streets, ori.-ir.ally made to Antonio Lassrva, for thirty-six months, at í;40. per month, which began on the 1st. March, 1915 end ended on the last day of February, 1918,

The renewal clause reads:- "It is understood and ftgse* agreed, th-t failure of lessee to notify lessor or his Agents in writing, within thirty days of the expiration of this lease, shall be construed as renewal of same under such terms and conditions as now enjoyed."

In the supplemental petition there was a claim for #■142. for repairs, which was said to have been absolutely necessary.in order to make the place habitable.

The answer sets up, that there were verbal and written notices, both given within the 30 days before the expiration of the lease ana therefore plaintiff haa no claim, and, further, that the repairs made to this house were absolutelj|i necessary and for v/hich he i s not bound end he left the premises in equally as good order as he found them.

Reading the testimony, and without „oir.ü into details, which wn f ir.k absolutely unnecessary as it would produce no benefit, we are satisfied, that written notice was given as reo.uired by the terms of the lease, and that prior to this notios plaintiff h-d notice,verbal notice, of d«Sx«Hasxt* defendants intention to remove from, the premises at the expiration of the lease.

That in company with several witnesses defendant went to plaintiff’» piece of business, and there fuilir.0 tc see plaintiff, left a written notice with an attendant, a boy, at the C3tablJehnent of plaintiff on plaintiff's desk, the attendant Sc.yinL that plaintiff was not in the place.

Whether t at be a fact or not is perfectly immaterial; that notice as required was given-1b shown by to», defendant1» testimony and that of his witnesses who accompanied him at tne time the notice was left.

Subsequently, several months, plaintiff claimed that he haa received neither notices in writing wnioh had been mailed nor the one that was left at his place of business, in fact* no notices at all.

The questions of fact were determined by the Judge of the lower Oourt adversely to plaintiffs claim.

The law, at all applicable to this case will be found in 30 Ann. p. 255-257, Murrell -vs- Lyon, the Syllabus, reading:

"The intention of the parties- to a contract of lease arising out of uncertainty of the contract will be consrued in favor of the lessee. It is the business of the lessor to have the agreement expressed in clear and certain terms." flso, see 24 Cyc. Mote 3-p. 10C8-1009.

In many cases decided by the Supreme Oourt of this State, one being that of Roberts -vs - Cooper et.al. 131 La. p.811.

This Qourt in numerous casea, citing only a few of them, August Frank -vs- August Hapen- 13th. Court of Appeal,473;-

"’■"hon questions of foot only are involved, the judgment of the lower Oourt will be affirmed unless it is manifestly erroneous."

And in 10th. Court of Appeal, at pa_es SCO and SOI, t.i-.e s u:.e iooterine h-js announced.

The Judo-e of the lower Oourt having seen and heard the witnesses waB in a better position to determine the v alue of their testimony given before him. >’is Judgement .vas that plaintiff had failed to make o\it his ca3e and we agreed in his opinion.

♦Judgment Affirmed?  