BEFORE HAWKINS, P.J., ANDERSON AND GRIFFIN, JJ.
HAWKINS, PRESIDING JUSTICE, FOR THE COURT:
Charles L. Weeks, the assignee of a lease between Chicken Chef Systems, Inc. (Chicken Chef), and the owner Walter Roman, appeals from a directed verdict in favor of Cal-Maine Foods, Inc. (Cal-Maine) (the successor corporation to Chicken Chef), rendered in the circuit court of Washington County.
Following a suit by Roman against Cal-Maine for non payment of rent, Cal-Maine (without contacting Weeks) paid Roman and settled the case. Cal-Maine then instituted this
Because it appears Weeks and Cal-Maine had, prior to any dispute between Roman and Cal-Maine, been released by Roman from most of the lease obligations, we affirm in part and reverse and remand in part.
On July 29, 1969, Chicken Chef, a Mississippi corporation, entered into a written lease agreement with Roman, owner of a restaurant building. The lease agreement was for a period of 15 years at a monthly rental of $571.13, with an option to extend the term two additional five-year periods; Chicken Chef also agreed to pay city and county ad valorem taxes as they became due. Chicken Chef subsequently vacated the building, but continued rent payments. In 1970 there was a corporate merger of Chicken Chef into Cal-Maine.
Weeks noticed the vacant building and wanted it for a restaurant. Thereafter, on March 27, 1970, eight months after the original lease, Chicken Chef entered into an assignment with Weeks, which was called a "sublease" by the parties, and which was consented to in writing by Roman. In the sublease Weeks rented the property for the remainder of the lease term, agreeing to fulfill all obligations of Chicken Chef in the prior lease, and thereby receiving all Chicken Chef's rights, including the option to renew the lease. Chicken Chef agreed that it would remain primarily liable under the lease. After the sublease was executed, Weeks entered the building and made payment of rentals directly to Roman. Weeks also paid city and county taxes directly to the city and county. Weeks maintained insurance on the premises as required by the lease through April 28, 1977. When Weeks occasionally would miss one of the payments, Roman would call Mr. or Mrs. Weeks to bring the rent current.
Weeks decided to close his restaurant effective January 1, 1976, and contacted Roman for permission. He did not contact Chicken Chef, thinking he was not required to do so in the lease. (All Weeks' dealings for almost six years had been with Roman.) Weeks then subleased the building to several other parties who occupied the building for short periods of time. Weeks contacted Roman before subleasing and continued to make the rental payments and pay the taxes. Weeks would sometimes fall behind in his rental payments, and Roman would, as noted, call him to get his payments current. Weeks testified that he continued to make the rental payments to Roman through August of 1977 and to pay the taxes through
In August of 1977 when the building was vacant, Weeks again tried to find sub-lessees. Weeks then made an attempt to re-zone the property, but failed. Then early in 1978, almost eight years after the execution of the "sublease," Roman approached Weeks and asked him not to do anything with the property because he wanted to sell it. Roman told Weeks that Roy Fulton (Fulton) was interested in leasing the property and possibly buying it. Weeks gave Roman the key to the building. A few days later Weeks called to meet Fulton and Roman at the building. There, Weeks was asked by either Roman or Fulton to remove his equipment. At this same time, Weeks was asked to have the heating and air conditioning system repaired. Weeks did hire and pay the repairman. Roman testified that:
[I]n the spring of '78 [Fulton] came to me and wanted to lease the building. I contacted Mr. Weeks and got the key and showed him the building and leased him the building for five or six months.
The rent Fulton paid was $600 per month, which he paid directly to Roman. Around January of 1978 when the taxes for 1977 were due, Roman told Weeks that if Weeks would pay half the taxes for the year, Roman would pick it up from then on. Roman testified that after 1977 when he stopped receiving payments, he did not contact Weeks and request any further payments. After that time Weeks was never told by Roman, Chicken Chef, or Cal-Maine that he should resume occupancy and payment of the rent. Roman never contacted Weeks because:
I never thought Mr. Weeks was the man that I had my lease with. I know Mr. Weeks was paying me my rent and that was a unique situation with me, but I felt like Chicken Chef were the people that owed me and that is who I was trying to contact trying to do something about it.
Weeks was contacted by several persons after that time who wanted to rent or occupy the building. Weeks would always have them call Roman. After Fulton had vacated the building, Roman allowed a civic organization that sold Christmas trees and "some pottery outfit" to occupy the building at no charge. Weeks, because of Roman's statements and actions, considered that Roman had released him.
On February 20, 1979, around one year after Roman had
requested Weeks vacate the building, the attorney for Roman sent Cal-Maine a letter demanding past due rent under the lease. Cal-Maine's letter eventually reached the attorney for and secretary of Cal-Maine. Correspondence passed between the attorneys including a statement prepared by Roman of the past due amounts. In June, 1979, Roman filed suit against Cal-Maine in the Washington County circuit court for the past due rent. Cal-Maine made only a cursory review of the matter and eventually settled the lawsuit thereby terminating the lease between Cal-Maine and Roman on the 29th of July, 1979, for $27,500. Cal-Maine then filed the present action on December 14, 1979, against Weeks and Roman (who was dismissed just before trial) in the circuit court of Washington County for breach of the sublease agreement.
Following trial the circuit judge granted a peremptory instruction in favor of Cal-Maine, because it was not proven that Roman was an agent of Cal-Maine, or that if he were an agent it was for the very limited purpose of collecting the ...