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Podol v. Jacobs

Supreme Court of Arizona

October 28, 1946

PODOL et al.
v.
JACOBS

Appeal from Superior Court, Pima County; Wm. G. Hall, Judge.

Affirmed.

Conner & Jones, of Tucson, for appellants.

Knapp, Boyle & Thompson, of Tucson, for appellee.

Morgan, Judge. Stanford, C. J., and LaPrade, J., concur.

OPINION

Morgan, Judge.

Page 759

[65 Ariz. 52] Appellants were defendants and appellee was plaintiff in the lower court. The facts, proceedings and issues may be stated briefly as follows:

Pauline Podol leased as her separate property to the plaintiff certain store premises for a term expiring January 4, 1945. The following provision appeared in the lease: "Lessee also has an option for three additional years for the rent of $ 125.00 per month for the first year and $ 135.00 for the additional two years, but must give lessor 90 days written notice before the lease expires of his intention to continue on this option of three years, and to pay the first and last months rent."

On January 4, 1945, the date of the expiration of the original lease, plaintiff brought suit for a "declaration of his [65 Ariz. 53] rights" under the lease and option for extension and for a performance by the defendants of their obligations. Benjamin Podol, the husband of Pauline, was made a defendant in the action. The suit was obviously brought under or is based on the provisions of Chap. 27, Art. 7, Declaratory Judgments, sec, 27-701 et seq., A.C.A.1939.

Page 760

The complaint alleged that plaintiff had complied with the option for extension by giving written notice about September 6, 1944, of his intention to renew, followed by tender on December 12, 1944, of his first and last months' rent. He alleged that the tender was refused, and that defendants notified him that he had failed to exercise his option to extend the lease and would require him to vacate on January 4, 1945.

Defendants moved to dismiss on the ground that the only issue involved was possession, the complaint did not state facts justifying a declaratory judgment suit and the allegations of the complaint disclosed that a tender of the first and last months' rent was made too late to be a compliance with the option. This was overruled. Defendants' answer, denying written notice of plaintiff's intention to renew, but admitting tender on December 12, with counterclaim for possession based on Chap. 27, Art. 15, Sec. 27-1501, A.C.A.1939, were filed. Reply was made by plaintiff to the counterclaim.

The case was tried before a jury. Plaintiff submitted proof to the effect that he had mailed the written notice to the defendants at the Valley National Bank Building, where Benjamin Podol maintained an office. Defendants testified that the notice was never received. During the course of the trial, the court sustained plaintiff's objection to questions asked by defendants' counsel of Benjamin Podol at the conclusion of his examination by the plaintiff as an adverse witness. The court also overruled defendants' objection to a question propounded by plaintiff's counsel to the plaintiff relative to an alleged admission by defendant Benjamin Podol to the effect that he had received the written notice of intention to renew. The objection was made upon the ground that his admission, since he was only the agent of the owner Pauline Podol, was not binding on her. The court ...


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