
    Valmore M. WILSON v. G. BRIAN CORPORATION.
    No. 637.
    Court of Appeal of Louisiana. Fourth Circuit.
    Sept. 17, 1962.
    Rehearing Denied Oct. 15, 1962.
    Certiorari Granted Nov. 27, 1962.
    Henry L. Ouilliber, Jr. (trial attorney), Robert J. Pitard and Matthew F. Belin, New Orleans, for defendant-appellant.
    Stanley A. Baron, New Orleans, for plaintiff-app ellee.
    Before HARDY, WOODS and DIXON, JJ-
   WILLIAM F. WOODS, Judge.

This is a suit for past due rent under a written contract of lease.

Plaintiff obtained judgment in the trial court for past due rent in the amount of $1,200.00, plus interest, taxes paid and attorney’s fees.

Defendant appeals from the judgment, claiming the written lease gave the lessor certain optional remedies in the event of default by the lessee; that lessor has already exercised one of the exclusive options in another suit, in which the lease was cancelled, and is now precluded from attempting to collect the past due rent.

This is the third suit between these parties arising out of this lease. The first suit was filed by plaintiff, demanding past due rent and possession of the premises. Upon a motion to elect, plaintiff dismissed this first suit. The second suit was filed within a week, in which plaintiff demanded the cancellation of the lease; judgment was obtained on August 1, 1957, cancelling the lease and ordering the defendant to vacate the premises. On September 17, 1959, plaintiff filed the instant suit, demanding the past due rent, taxes paid and attorney’s fees.

The contractual provisions in the lease entered into between plaintiff and defendant herein, setting out the remedies available to the lessor in the event of default by lessee, are as follows:

“Should the lessee at any time violate any conditions of this lease * * or fail to pay the rent * * * then at the option of the lessor, the rent for the whole unexpired term of this lease shall at once become due and exigible; and lessor shall have the further option to at once demand the entire rent for the whole term, or to immediately cancel this lease, or to proceed for past due installments only, reserving its right to later proceed for the remaining installments * *

The provisions of the contract are clear and unambiguous. If the lessee failed to pay the rent, lessor had the right to declare the rent for the whole unexpired term due and exigible, and then, at his option, do one of three things:

(1). Demand the entire rent for the whole term; or
(2) Immediately cancel the lease, or
(3). Sue for past due rent and reserve his right to proceed later for the remaining installments.

Plaintiff has already exercised option number two by suing and obtaining a judgment to cancel the lease and is now seeking to exercise a part of option number three by suing for past due rent. This he cannot do by the clear terms of the lease, which is the law between the parties.

Should any judicial authority be necessary to support this conclusion, it may be found in Villere & Co. et al. v. Latter et al., 186 La. 91, 171 So. 705, in which the Supreme Court held that when one specific and exclusive option is exercised by the lessor, he waives his right to exercise another option under the contract. In the Villere case the lessor obtained a judgment in a prior suit for three months past due rent, then brought suit to obtain the whole amount of rent for the entire term of the lease. The Supreme Court held that the lessor, by his first suit, waived his option to demand the entire rental under the lease.

The lease provided the lessee was obligated to pay the taxes on the property, and in the event of his failure to do so, plaintiff could pay them and recover that amount, together with 8% interest thereon. The judgment of the lower court awarded plaintiff the sum of $108.08 for taxes paid, together with 8% interest. Attorney’s fees in the minimum amount of $25.00 was also provided for in the lease. Plaintiff is entitled to these amounts.

Therefore, the judgment of the lower court is amended by reducing the amount thereof to the principal sum of $108.08, with 8% interest thereon until paid, and $25.00 attorney’s fees. As so amended the judgment appealed from is affirmed. Costs of this appeal are taxed against the plaintiff-appellee.

DIXON, J., dissents, giving written reasons.

DIXON, Judge

(dissenting).

The contractual provisions in the lease entered into between plaintiff and defendant herein setting out the remedies available to the lessor in the event of default by lessee are as follows:

“Should the lessee at any time violate any conditions of this lease or fail to pay the rent * * * punctually at maturity, as stipulated; and should such violation continue for a period of five days after written notice has been given lessee,' then, at the op-. tion of the lessor, the rent for the whole unexpired term of this lease shall at once become due and exigible; and lessor shall have the further option to at once demand the entire rent for the whole term, or to immediately cancel this lease, or to proceed for past-due instalments only, reserving its right to later proceed for the remaining instalments, all without putting lessee in default, lessee to remain responsible- for all damages or losses' suffered by lessor, lessee hereby assenting thereto and expressly waiving the legal notices to vacate the premises.” (Emphasis supplied)

Defendant-appellant interprets the lease contract as giving the lessor the following three exclusive options under the lease in the event of default by lessee:

(1). Sue for the rent for the whole unexpired term of the lease, or
(2). Immediately cancel the lease, or
(3). Proceed for past-due instal-ments only.

A fair interpretation of the quoted pro-, vision of the lease agreement seems to show that the lessor has the option, on de--. fault by lessee, to claim the rent for the “whole unexpired term of this lease,” and the further option either to demand the entire rent for the whole term or immediately cancel the lease or collect the past-due instalments only, reserving the lessor’s right to collect remaining instalments that are not paid when due.

Instead of certain exclusive remedies available to the lessor, the contract as written gives the lessor the right to collect the rent for the whole unexpired term of the lease, as an additional choice of remedies. It does appear that this contractual provision is inartistically drawn; the first option (to collect the rent for the whole unexpired term) is repeated as the first of the “further options” (“to at once demand the entire rent for the .whole term”).

In this case, the,lessor has exercised one of the “further options” in the prior suit to cancel the lease. A suit to proceed for past-due instalments is included in the provisions of the lease as the third of the “further options”. To interpret the lease contract to mean that the lessor could only (1) demand the entire rent for the whole term, or (2) cancel the lease, or (3) proceed for past-due instalments only, leaves dangling without relevance the first clause, providing that “the rent for the whole unexpired term of this lease shall at once become due and exigible.”

It seems difficult to interpret these contractual provisions between the lessor and the lessee to mean that the lessor has the right, on default by lessee, either to cancel the lease, or collect the past-due and unpaid rent. The contract provides that the rent for the. whole unexpired term of this lease shall ,at once -become due and exigible, at the option of the lessor. When the contract grants the lessor further options, we do not understand that it was the intent of the written provisions of the lease to give the lessor one exclusive option.

In this case, the option to cancel has. been exercised; now, the lessor has demanded. less than he might have under the first remedy given him in the lease. He does not demand the rent for the whole unexpired term of the lease; he demands the unpaid rent due for the time when the lessee had the right of occupancy under the lease, remitting the balance.

In Villere & Co. v. Latter, 186 La. 91, 171 So. 705, there was a difference in the terms of the lease relied on by the lessor. In the Villere case, the lessor had obtained a judgment in a prior suit for three months’ delinquent rent. The lessor subsequently instituted suit to obtain the whole amount of rentals due for the entire term of the lease. The pertinent clause of the lease contract provided that, should the lessee fail to pay the rent, “the rent for the whole unexpired term of this lease shall, without putting lessee in default, at once become due and exigible, and in any such event, lessor shall have the option either at once to demand the entire rent for the whole term or to immediately cancel this lease without putting the lessee in default.”

The Supreme Court held that the lessor, by its first suit to collect instalments of rent then past due, waived its option to demand “at once” the entire rental under the lease; and since the agreement gave the lessor only two options — to demand the entire rent for the whole term, or to immediately cancel the lease — the lessor no longer had the right under the terms of the lease to demand the'entire, rent..

In applying the holding, of the Villere case to the case at hand, there seems to be no obstacle to the lessor’s collection of past-due rent, accrued before the cancellation of the lease. ■ ■ .

For the above reasons I respectfully dissent.

Rehearing denied; Dixon, J., dissenting.  