Milliner v. Farmer

TUCKETT, Justice.

The plaintiffs commenced these proceedings in the court below to recover damages for breach of the terms of a lease.

The third party complaint against the defendant G. Gordon James was dismissed and the third party defendant James Ford Sales, Inc., defaulted and judgment was taken against it. The issues between the plaintiffs and the defendants were submitted to the court on stipulation except as to the amount of attorneys’ fees and as to that issue the plaintiff called a witness who testified as to the amount of a reasonable attorneys’ fee. The defendants have appealed to this court seeking a reversal of the award of an attorney’s fee.

On July 23, 1962, the plaintiffs as lessors entered into a lease with G. Gordon James as lessee for certain business premises in Heber City, Utah. The term of the lease was for a period of five years. The lease was subsequently assigned to Walton R. Farmer who in turn assigned the lease to Heber Valley Ford, Inc.

The lease by its terms expired on July 23, 1968, and thereafter the defendants continued to occupy the premises and to pay rent in the amount specified in the lease. On February 12, 1969, plaintiffs served upon the defendants a notice of termination of lease and to vacate the premises.

It is the defendants’ contention here that the plaintiffs’ right to recover attorneys’ fees under the provisions of the lease expired upon termination of the lease on July 23, 1968. In support of their contention the appellants cite Section 78-36-3, U.C.A. 1953, which provides in part as follows:

* * * In all cases where real property is leased for a specified term or period, or by express or implied contract, whether written or parol, the tenancy shall be terminated without notice at the expiration of such specified term or period * * *.

It is the defendants’ further contention that the plaintiffs having elected to terminate the lease and to require the defendants to vacate the premises was an election to treat the lease and the tenancy thereunder at an end and that the provision of the lease obligating the tenant to pay attorneys’ fees likewise ended.

Our examination of the record indicates that contrary to appellants’ contentions before this court the stipulations entered into by the parties while this matter was pending before the district court'indicate .that the defendants considered themselves bound by the lease and that they -were holding under it.

We are of the opinion that the judgment of the trial court awarding attorneys’ fees to the plaintiffs was proper and the same is affirmed. Respondents are entitled to costs.

CALLISTER and HENRIOD, JJ., concur.