0- j ; ;. , ••■ F1 1' 4-8566 W-.02d 64 () .;;, :fr , -.;;; Opinion . ' delivered October 18,1948...,;* 0 r,;Th I 1. LANDLORD AND TEN A NT—OPTION TO PURCHASE—TIME _OF THE ESSENCE. = -IR "the:OXereiSe ': hSii-the lesSee- of a:" --right -, giVeri -contra by the -ci: of, l'ee whia-f) does: notobligate•linitai .:h9y; but maY, 47 so Tat fhis , -„election i ;time is of the;-osknCe Whethef 7-the -contract -expressly so--provides or- not, ,and the-tenant „cannot '. e 1 xtend . the n iii e by , holding_over and paying rent. ' - / -7LANDLORD- :A ND -r,TSNANT—DPTIDN , _TO-j.,FuRcHAsE.7-,IR .n:ction to , enfOrce -a , p i royiSinn.,..in fhelease- contract-giving ;-him dn' Ofotion 't6`.piirchaSO;Verd ing that he did not tender comPlince in- th'e ; timb-required by the contract. . . _ 3. • _ i b 1 A ' NDLORU AND TENANT_OPTION , TO_FU r- • R CHA SE . =:rheclemand. of appellant" in an "alt • empted 'exerc ' i J s . e of his option . t • h - "pifiChase . _ th C e t leased premises that appellee execute deed and take'Ar-rilOit-gake on the_ land to secure payment of deferred payments was, since -it was not -alithorized by the Contract; unenforceable. c,`"--1.' — LANDLuRo AND TENANTBREACH.OF,LEAsE CoNTRACT.--appellant's attempted exercise-of -hi g optiOn to 'purehase the ledsod -Preinises he; liairOthe r rw . " i'sl c biea.Cheethefeise agreOrileilt `withoit foffer, to repair: as- 'provided by: the' contctfl 5:: r OFr; OPTION , 'TO rimiciiit - estfla Since appellant's option to purchase - liras"' 'de pendent the lease,. his forfeiture of the lease was necessarily a forfeiture of -. his -option, to. purchase. '1r: 6.; "APPEAL AND-. ERROR:=In, arinell6lit's-'dctiontoOliforce:--a - : given -by; --ii the -leaS C artradt.:M puidliase; -the' ;evidenc , e wäST fi Cut!, *lent AO: SUpport thé __, or _pay for ndihg:thitimo offer-was r . , niade to reimifr damage to. the -premisei-- as Until " fte 'r . rprovided for, 'the ' in -,the ,lease i ight tö eVicti4-Cerned..„ Ap1 :fioTni ham, Chancellor; affirmed. : S 5:
938 SMITH V. CARTER. [213 C. C. Hollensworth, Aubert Martin and J. T. Haley, Jr., for appellant. DuVal L. Purkins, for appellee. SMITH, J. On September 1, 1942, the parties to this' litigation executed what is called a Flexible Farm Lease, and in doing so employed a blank contract prepared by the Federal Government which referred to appellee as landlord, and appellant as tenant. It is quite a lengthy document, and when all the blank spaces bad been filled it would have constituted a lease and nothing more, except that there was added at the end thereof, the following recital : "It is agreed that the tenant may purchase this farm for two thousand dollars ($2,000) and time during the life of the lease, payments to be made in ten (10) equal annual payments of—two hundred dollars ($200)_each. If the tenant purchase the farm, any annual rents th'at have been paid may be counted as payments on farm if enough additional is paid to make any annual payment equal to two hundred dollars ($200)." The effect of this addition was to convert the contract from an ordinary lease, to a lease with an option to purchase. • It is recited in paragraph two of the lease that "The term of this lease shall be five years from January 1, 1943, to December 31, 1947, and this lease shall continue in effect from year to year thereafter until written notice of termination is given by either party to the other on or before the 1st day of October, before expiration of this lease or any renewal." Other provisions of the lease relevant to the ques-. tions presented on this appeal are found in sub-paragraph (c) of paragraph seven, and in sub-paragraphs (b) and (c) of paragraph eight. Sub-paragraph (c) of paragraph seven provides that the tenant will not commit waste on or damage to the farm, or permit others to do so. Sub-paragraphs (b) and (c) of paragraph eight read as- follows :
ARK.] SMITH V. CARTER. 939 " (b) The tenant may use dead and unmarketable timber and other timber designated by the landlord for his own fuel, but the tenant shall cut no growing trees of value for fuel or other use and shall market no timber from the farm without the consent of the landlord." " (c) Willful neglect, failure, or refusal by either party to carry out any material provision of this lease shall give the other party the power to terminate the lease, in addition to the right to compensation for damages suffered by 'reason of such breach. Such termination shall become effective thirty (30) days after written notice of termination specifying the delinquency has been served on the delinquent party, unless during such thirty (30) day period the delinquent party has made up the delinquency. The landlord shall have the benefit of any summary proceedings provided by law for evicting the tenant upon termination under this paragraph, or at the end of the term." On 'November 5, 1946, Carter, the landlord, served on Smith, the tenant, a written notice reading as follows : "This notice to you, in accordance with the terms of the lease, dated September 1, 1942, entered into by you with the undersigned for the use and occupation (of the leased land) to terminate said lease for willful neglect, failure and refusal on your part to carry out the terms thereof. Some of the terms of said lease which you have violated are : "1. You have failed to farm the premises in an efficient and husbandlike manner. "2. You have cut and removed merchantable timber. "3. You have failed to keep the premises in good repair. "4. You have failed to maintain the fences as directed. "5. You have diverted lumber, materials and fence rails wrongfully. "In many other particulars you have violated the terms of said lease.
940 .SMITH V. CARTEA: ! [213 ." Therefore; this is the -thirty-days Aivritten notice to you 'of the terminatiOn of ;said, lease in aceordance-With its termS and unless you, comply with said leaSe 'on-surrender the possession' of.the lease premiSes within thirty days from the . date,of the service - of -this thotice;npOn Ton; the undersigned will take action at law to evict you. r " This 'notice" eieatted -oir • this' 5 ady Of 'N&Veraber, 1946; . 'and serVed tipthi' Yon 'on Me of NOVeriiber; i946. 9, , ro I;: .,•■ , , ;;; The tenant_ responded , tO; this , nOtice filingf h suit forthe Specific , perforthancé ,Of ;the contract in'Whichihe alleged that he had coinplied , with all the )terths , and 'conditions of. the Jeäse,v and prayed: that , épgranté d: , the right to; inake the Tayndents ptii . chase diloney wequired by the:lease. An answer was filed containing,allegations upon which much testimony was off ered,.which the _Chan2 cellor reviewed in the written opinion, .evidencing:that the testimony was carefully considered. ,In this .opinion findings of 'AO w 3 ere made,. tO:the , effecti that the tenant fiàdEealed' 'contraet in the re*StiectS nientthle`d the notice •hbOve copied; and, iti was 'found ithat idainages to-the extent . of $100_-had ,been c incurred: 'The; opinion reflects that' greater damages had bbeir inflibted, IAA Ithe testimony- 'was not sufficiently , definite as: to the itemS thereef to warranth finding for< a larger amonnt: . ,t) 66- The court found that the notice abOve copied was;not an eviction notice, but a notice toi repair and ,comprensate damageiIinf g uant SUb-tiaragra0'(d)' Ok 'paragraph eight above copied. The "COUrt fu'rther"föhnd that lant, did not avail hirnself . of the ,provisiOns,o$ this <sub-paragraph, but on the contrary ,, clenied, any,, damage or a0breach of the cOntract: The cOiirt found against this contention and found to the contrary that . appellant haa breached the- contractin several r6gpecU; t6 lwit : b cutting down a plum orchard, by selling merchantable`tinil ber,,removing.and not ,rebnilding,f ewes, and-by _failure to cultivate all the land. Appellant-,says that :tlie . ,relief prayed,' to=wit specific performance, should be awarded!him - nOtwithstand-
ARK.] SMITH V. CARTER: 941 ing . these facts, for the reason- that he now proposes to pay appellee the full frurchase price- of the land 'and that if he does so appellee is riot entitled to cancel the lease: Iri support of this contention the case -of-Keogh 'v. PeCk; 38 A. L. B. 1151, 316 Ill. 318, 147 N. E. 266, is cited. There' a' tenant sought .to . , enforce an option to purchase the leased property, 1 which right 'was 'resisted upon: the ground' that the tenant; in violation of, the contract, , had demolished w building on the land. This was held no del fense where the tenant had exercised his option ;before' the forfeiture was declared. In, the , instant case, the testimony-abundantly, sup-- ports the specific findings of the . Chancellor, that- appellant had 'breached , his contract in ,several respects,,,and that he- did not attempt to ayaildrimself of ,the provisions of sub-paragraph (c) of paragraph eight until . after the time allowed by that "sub-section to repair .and, compen-. sate the breach had expired. • This . is not a uit fo enforce a *Contract to' c6nNier land, in which contracts time is not Of the esSenc6; Unless made so by the contract.' It is , rather "a, Snit to dill fOrce an option to buy: . The optiOn 'was entirely With the tenant. He was under no obligation to buy. He' COuld do , so or not as he pleased,, and in , such contracts time is-of the.essence whether the contract expressly so provides or not. - 1 At § 84 of the chapter on Landlord 'and' Tenant; 51 C. J. S., there is a discussion- of the right of a tenant in possession under a contract giving him the option to buy; and under the sub-head of "Time to Exercise Option" it is said: "In the exercise of the option, time , is of the essence ; the court is without discretion -to , grant additional time, and the lessee cannot e ?itenct the prescrihed period merely by , holding over and , paying rent." See, also, Carpenter v. Thornbnrn,76 Ark. 578, 89 S. W. 1047, Thomas v. JOhnson, 78 Ark. 574, 95 S. W. 468; Gr,umme'l' v. Price, 101 Ark. 611, 143 S.' W. 95.; Bishop v. Melt,011i, 202 Ark.. 732, 152 S. W. -2d 299 Here the court found, and' we think the testimony supports the finding, that appellant did not tender corn:
942 SMITH V. .CARTER. [213 ' pliance in the time and manner required by the contract. The parties differ as to the meaning and proper interpretation of the typewritten addenda herein quoted, providing the time and manner of making payments. Appel-lee insists that it was agreed that if appellant decided to exercise the option to buy he should have made a cash down payment of $200 and should pay interest on any delayed payment at the rate of ten percent. per annum. We do not agree with this contention, but even so, apPellant did not make tender of payment as the contract required. Appellant testified as to only two tenders. The first was some time after the annual rent of $150 had been paid, which was payable in any event His wife offered to make a tender of $50 additional which appellee refused, but attached to the tender was the demand 'that appellee execute a deed and take a deed of trust to secure ;the balance of the purchase money. The Contract did not authorize this demand. Appellee was not required by the contract to execute a conveyance of any kind until the payments had been completed. He did offer to execute a bond for title, but this was not what appellant demanded. The second tender was made at the end of the five-year period, but this was only $200, with an offer to pay the balance, which tender was not actually made. But even so, the contract had then been breached without offer to repair as sub-paragraph (c) of paragraph eight required. Appellant insists that appellee waived his right to insist that the contract had been breached. The basis of this insistence is that duing the fourth year of the lease, but before its end, appellee had agreed that appellant might continue to occupy the land under the contract, but appellee insists that when he did so agree, he was unaware of the nature and extent of the breaches of the contract, and that when this was discovered and ascertained, he gave the notice above referred- to, which the court designated as a notice to repair, which, as we have said, was not complied with.
AR K . 943 The option to buy was of course dependent upon the lease, and if appellant had forfeited his rights there-under, he necessarily forfeited his option to buy. The testimony warrants the finding of the court that no offer to repair and pay damages was made until the right to evict had accrued and the judgment must therefore be affirmed, and it is so ordered.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.