
    Charles SCHUSSLER, Appellant, v. VIKING MARINE, Inc., a Florida corporation, and Emil Raffel, Individually, Appellees.
    No. 58-128.
    District Court of Appeal of Florida. Third District.
    April 29, 1958.
    Sy Chadroff and Herbert M. Klein, Miami, for appellant.
    George E. Patterson, Jr., and Glen L. Calhoon, Miami, for appellees.
   CARROLL, CHAS., Chief Judge.

Appellant filed an action in the civil court of record for damages for breach of a written lease. A motion of defendants to dismiss was granted, and the complaint was dismissed with prejudice, by an order finding that “plaintiff’s amended complaint alleges a lease for a period of one year while the copy of the lease attached to the complaint reflects a month to month tenancy, and finding that there is a fatal variance between plaintiff’s complaint and exhibit.”

This appeal was submitted for decision on the record and briefs without oral argument. Under the briefs of the parties the appeal is presented to this court on the question of whether the lease was one from month to month or was for a term of one year.

We are unable to agree with the learned trial judge that the lease, a copy of which was attached to the complaint, was one from month to month.

The lease contained the statement that it was for a term of one year. Some uncertainty appeared where the sum of $85 was inserted, at the place in the printed form for insertion of the total rental. The lease then provided that the rent should be paid at the rate of $85 on the 15th day of each month.

However, on reading the lease as a whole, it appears from those and other provisions that a lease for the period of one year was intended. The tenant was allowed $85, or one month’s rent, in return for repairs which he undertook to make during the period of the lease. There was a provision for payment of the first and last month’s rent in advance. In connection with an option for renewal, the lease contained the following provision which is not considered consistent with a month to month lease:

“Tenant receives option credit of $110, to be received by the lessor as liquid assets, should the option not be exercised as agreed in the manner specified.”

The typed-in provision by which the tenant was given the option to extend the lease for five additional years seems to remove any doubt and shows that the initial term of the lease was for a period of a year. That provision reads as follows:

“It is hereby understood and agreed to by the parties hereto, that tenant is granted an option to continue tenancy under the terms heretofore recited, unless otherwise specified in writing, for three additional years, i. e., three years in addition to present leasehold of one year and for $75.00 per month and at the end of said three year additional period, tenant has option of two additional years at same $75.00 per month rental & under same terms and conditions heretofore agreed to.” (Emphasis added.)

For the reasons set out above, the order of dismissal which is appealed from is reversed and the cause is remanded for fury ther proceedings.

Reversed and remanded.

HORTON and PEARSON, JJ., concur..  