Saltz v. Florida Coast Properties, Inc. (5 Fla. Supp. 52, 1953)

ORVIL L. DAYTON, Jr., Circuit Judge.

Opinion, June 29, 1953: In his bill for a declaratory decree the plaintiff J. E. Saltz alleges his occupancy of premises located at 444 Central Ave. in St. Petersburg under a written lease dated October 6, 1947 from the defendant Florida Coast Properties, Inc. (hereinafter sometimes referred to as the “corporate defendant”). If not renewed the lease expired on May 1, 1951. Plaintiff alleges he exercised his option to renew the lease, as provided by the terms thereof, by mailing notice of such exercise of the option to renew on October 11, 1947 — for two additional 5 year periods.

The defendants in their answer deny that they ever received the letter wherein plaintiff alleges he exercised his option to renew. In a counterclaim defendants allege plaintiff’s violation of the terms of the lease in that he sub-let a portion of the premises to one G. L. Barnes without the consent of the owners. Defendants further allege the execution of a lease from the corporate defendant to the defendant Abraham C. Schnee dated July 8, 1951, which granted possession of the premises to Schnee as of June 1, 1951, and that plaintiff occupied the premises as a tenant at sufferance after May 1, 1951.

Plaintiff in his reply to defendants’ counterclaim states that his arrangement with Barnes had existed continuously since 1940, with signs on the display window and on the marquee in front of the building indicating that Barnes had women’s footwear for sale in the store and that plaintiff sold children’s shoes in the same premises, that there had never been any written agreement between plaintiff and Barnes but that Barnes paid him a percentage of his sales for the privilege of occupying space in the store, that he had the right to remove Barnes whenever he so desired and that such occupancy by Barnes was with the knowledge and approval of G. M. Nicholson, president of the corporate defendant, and of T. K. Duck-wall, secretary thereof.

Plaintiff contends defendants had actual notice of his intention to renew his lease from the fact that he spent approximately $13,000 for improvements made on the premises, including the installation of an air conditioning system, new carpeting and a renovation of the front of the building — which he would not have done had he intended to vacate the premises in 1951.

Appearing in the record as plaintiff’s exhibit No. 14 is a copy of a letter which plaintiff states he wrote to the corporate defendant dated October 11, 1947 as notice of his exercise of his option to renew the lease. Also in the record as plaintiff’s exhibit No. 21 is a document which plaintiff stated he typed himself as a copy of the letter which appears as exhibit No. 14. Plaintiff further stated that it was not an exact copy — but was a copy “in substance” of exhibit No. 14.

Plaintiff exhibited to defendants’ counsel the copy shown as exhibit No. 21 during the month