B-125612, DEC. 1, 1955

B-125612, DEC. 1, 1955

TO MR. L. D. BATES, JR.:

REFERENCE IS MADE TO A LETTER DATED JUNE 16, 1955, FROM MINER AND AYLWARD, REQUESTING, IN YOUR BEHALF, REVIEW OF THE DETERMINATION, AS SET FORTH IN LETTER OF JUNE 8, 1955, FROM THE CLAIMS DIVISION OF OUR OFFICE, OF YOUR INDEBTEDNESS TO THE UNITED STATES IN THE AMOUNT OF $375, REPRESENTING RENT FOR TRACT NO. 36, KANOPOLIS RESERVOIR AREA, KANSAS, FOR THE PERIOD AUGUST 1 TO OCTOBER 31, 1951, UNDER LEASE NO. DA-25-075-ENG- 1015.

YOU AGREED TO RENT THE LAND FROM THE UNITED STATES FOR A TERM BEGINNING AUGUST 1, 1950, AND ENDING JULY 31, 1955, FOR A SUM OF $1,500 PER ANNUM, PAYABLE IN ADVANCE QUARTERLY PAYMENTS OF $375. THE PAYMENT IN QUESTION BECAME DUE AUGUST 1, 1951. BY LETTER OF JULY 24, 1951, YOU NOTIFIED THE GOVERNMENT OF YOUR INTENTION TO TERMINATE THE LEASE. IN ACCORDANCE WITH YOUR LETTER, THE LEASE WAS TERMINATED, EFFECTIVE AUGUST 10, 1951.

IT IS CONTENDED THAT YOU ARE NOT LIABLE FOR THE RENT OF THE LAND AFTER AUGUST 10, 1951, THE EFFECTIVE DATE OF TERMINATION. YOU HAVE TENDERED YOUR CHECK PAYABLE TO THE TREASURER OF THE UNITED STATES IN THE AMOUNT OF $38.36, AS RENTAL FOR THE PERIOD AUGUST 1-10, 1951, EQUIVALENT TO 10/365THS OF THE ANNUAL RENTAL.

PARAGRAPH 16 OF THE LEASE PROVIDED THAT THE LEASE COULD BE TERMINATED BY THE LESSEE AT ANY TIME BY GIVING TO THE SECRETARY OF THE ARMY, THROUGH THE DISTRICT ENGINEER, AT LEAST TEN DAYS' NOTICE IN WRITING. IT IS A WELL SETTLED RULE OF LAW THAT A PROVISION REQUIRING NOTICE OF EXERCISE OF AN OPTION TO TERMINATE A LEASE, MUST BE COMPLIED WITH UNLESS WAIVED. SUCH NOTICE MUST BE GIVEN IN ADVANCE FOR THE REQUIRED LENGTH OF TIME. AM.JUR., LANDLORD AND TENANT, SECS. 837. SINCE YOU DID NOT GIVE NOTICE TO THE GOVERNMENT OF YOUR DESIRE TO TERMINATE THE CONTRACT AT LEAST 10 DAYS PRIOR TO AUGUST 1, 1951, IN ACCORDANCE WITH THE TERMS OF THE LEASE, THE LEASE WAS IN EFFECT ON THAT DATE.

ALSO, IT IS WELL ESTABLISHED THAT IF THE RENT FOR THE ENTIRE PERIOD BETWEEN RENT DAYS IS PAYABLE IN ADVANCE, A SURRENDER DURING THE PERIOD DOES NOT OPERATE TO DISCHARGE THE RENT OR ANY PORTION THEREOF FOR SUCH PERIOD. THE THEORY OF THIS VIEW IS THAT RENT PAYABLE IN ADVANCE IS CONSIDERED AS ACCRUING ON THE DAY ON WHICH IT IS DUE. 32 AM.JUR. SEC. 915 AND WELLS V. BLYSLAD, 91 COLO. 346, 14 P.2D 1078. SINCE THE LEASE WAS IN EFFECT ON AUGUST 1, 1951, AND SINCE THE RENT FOR THE QUARTER BECAME DUE AND PAYABLE IN ADVANCE ON THAT DATE, YOU BECAME LIABLE FOR PAYMENT OF THE RENT FOR AUGUST, SEPTEMBER AND OCTOBER, 1951, IN THE AMOUNT OF $375.

WITH RESPECT TO YOUR CONTENTION THAT THE GOVERNMENT LEASED THE LAND TO ANOTHER PARTY COVERING THE SAME PERIOD HERE UNDER CONSIDERATION, THE DEPARTMENT OF THE ARMY REPORTS THAT TRACT 36, TOGETHER WITH OTHER TRACTS, WAS ADVERTISED FOR LEASE DURING NOVEMBER 1951, AND THAT THE LAND WAS LEASED TO A THIRD PARTY FOR A PERIOD OF FIVE YEARS COMMENCING JANUARY 1, 1952. OUR OFFICE, HAVING NO FIRSTHAND KNOWLEDGE OF THE FACTS, MUST NECESSARILY RELY ON THE REPORT OF THE ADMINISTRATIVE OFFICE AS TO THE FACTS. IN THE ABSENCE OF EVIDENCE SUFFICIENT TO OVERCOME THE PRESUMPTION OF ITS CORRECTNESS, IT IS THE INVARIABLE RULE OF THE ACCOUNTING OFFICERS OF THE GOVERNMENT TO ACCEPT THE STATEMENT OF FACTS AS REPORTED BY THE ADMINISTRATIVE OFFICERS. THERE IS NOTHING IN THE PRESENT CASE TO JUSTIFY THE APPLICATION OF A DIFFERENT RULE.

ACCORDINGLY, UNLESS PROMPT ARRANGEMENTS ARE MADE WITH OUR OFFICE FOR THE SATISFACTION OF THE FULL AMOUNT OF YOUR INDEBTEDNESS, THE MATTER NECESSARILY WILL BE REFERRED TO THE ATTORNEY GENERAL FOR FURTHER COLLECTION ACTION IN ACCORDANCE WITH THE USUAL PROCEDURE.