Everson v. Heffernan — 59 A.D. 533

Majority

p. 533

Alice M. Everson, Appellant, v. Timothy Heffernan, Respondent.

Headnote

Lease — what statements, by one proposing to take an assignment thereof and by the lessors agent, do not modify its provisions as to repairs.

A lease for a term of ten years provided that the lessee should “ at his own cost and expense make any necessary repairs to said building during said term,” and that the lessee might terminate the lease at the end of any year of the term upon giving three months’ notice. After the lease had run about six months, a person who had entered into negotiations with the lessee for the assignment thereof, went to the office of the lessor’s agent and stated to one Johnson, who was in charge of the office, that he would purchase the lease if the lessor would make certain repairs (which he did.not specify) upon the premises. Johnson •thereupon wrote the lessor’s agent the following letter:.

“ Nothing special to write about, unless it is that your tenant Sugarman has sold out to T. Heffernan, builder, to take effect February 15th. Heffernan called to see you about making some repairs to office, and he wants to build a paint room on top. I told him he would have to get along the best way he could until your return,” to which the agent replied: “Heffernan can make such necessary repairs and such other repairs as he thinks necessary, and I will be liberal in settlement with him. I will help a good tenant all I can.”

Upon receiving the agent’s letter, Johnson showed it to the proposed assignee, who thereupon purchased the lease, entered into possession of the demised premises and made certain repairs thereon, which did not include the building of a paint room or any substantial repairs to the office.

Meld, that the two letters quoted did not constitute a modification of the written lease which would entitle the assignee to offset against rent due thereunder the cost of making the repairs—such repairs not being those specified in Johnson’s letter, as to which alone the lessor’s agent’s letter could be construed to require him to make a liberal settlement;

That, as the lessor’s agent was informed by Johnson that the assignment had already been made, there was no consideration for the former’s agreement to pay for repairs;

That a failure on the part of Johnson to correctly inform the lessor’s agent of the condition of the negotiations between the lessee and his assignee did not affect the lessor’s rights.

Appeal by the plaintiff, Alice M. Everson, from a judgment of the County Court of Onondaga county in favor of the defendant, entered in the office of the clerk of the county of Onondaga on the 31st day of July, 1900, upon the decision of the court affirming, upon appeal, a judgment of the Municipal Court of the city of Syracuse.

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This action was begun on the 16th day of February, 1900, in the Municipal Court of the city of Syracuse, N. Yi, to recover five months’ rent ($250.) for premises in the city of Syracuse, N. Y., ■owned by the plaintiff and used as a mill, which rent was then due and payable according to the terms of a lease bearing date August 15,1898, made and executed by the plaintiff and delivered to one Barney Sugarman, who went into possession thereunder and. occupied the premises until February 23, 1899, at which time, by an instrument in writing, Sugarman assigned said lease to the defendant, he, the defendant, agreeing to pay the rent which should thereafter become due as provided in said lease. The defendant went into possession of the premises under said assignment and has since continuously occupied the same. The term of said lease was ten years, and it provided that the lessee should, “ at his own cost and expense, make any necessary repairs to said building during said term.” It also provided that the lessee “ may terminate the said letting and this lease, if he so chooses, at the end of any year of said term, provided he give said lessor or her agent, Thomas Molloy, three months previous notice of his intention so to do.”

The defendant interposed the defense, in substance, that at the time he was negotiating for the purchase of the lease from Sugar-man, he made an oral agreement with the plaintiff through her agent, One Thomas Molloy, by which said lease was modified and ■changed, so. as to authorize the defendant to make such necessary .repairs upon said premises as he might deem proper during the term of said lease, and to charge the cost thereof to the plaintiff, or ■offset the same against any rent which might become due by the terms of said lease, and that under said parol agreement he did make repairs upon said premises before the commencement of this notion, the cost ,of which exceeded or equalled the amount of' rent: which was then due by the terms of the lease, and that, therefore, the defendant was not indebted to the plaintiff in any sum whatever.

•These issues were tried and it was found by the Municipal Court that the original lease was thus modified; that the defendant had made repairs upon the' premises, the cost of which was at least ■$250, the amount of rent for five months specified in the lease, and that the defendant was entitled tc offset the cost of such

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repairs against the plaintiff’s claim against him for rent, and such judgment was directed for the defendant for the costs of the •action.

The plaintiff appealed from such judgment to the County Court, where the judgment of the Municipal Court was affirmed, and from such judgment of affirmance this appeal is taken.

Andrew S. White, for the appellant.

Thomas Hogan, for the respondent.

The evidence tended to show that while the defendant was negotiating with Sugarman for the purchase of his lease, he called at the ■office of the plaintiff’s agent and stated in substance to a Mr. Johnson who was there in charge, that he contemplated purchasing the lease in question, and that he would purchase the same from Sugar-naan if the plaintiff would make certain repairs (which were not specified) upon the buildings; that he was informed that he, Johnson, could do nothing about the matter, but would inform plaintiff’s -agent of the defendant’s desire. Thereupon Johnson wrote to plaintiff’s agent a letter, as follows, viz.:

'“Thomas Mollot, January 30th, 1899.

“ Big Moose; N. V.:

“Nothing special to write about, unless it is that your tenant •Sugarman has sold out to T. Heffernan, builder, to take effect February 15th. Heffernan called to see you about making some .repairs to office, and he wants to build a paint room on top. I told liim he would have to get along the best way he could until your return.

. “(Signed) ■ P. J. JOHNSON.”

• On the second day of February plaintiff’s agent, Molloy, wrote ■Johnson as follows, viz.:

“ Syracuse, N. V., February 2nd, 1899.

'“ P. J. Johnson :

“Heffernan can make such necessary repairs and such other repairs as he thinks necessary, and I will be liberal in settlement with him. I will help a good tenant all I can.

“(Signed) THOS. MOLLOT.”

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: Soon after the receipt of this letter Johnson showed it to. the defendant, and thereupon he completed his negotiations with Sugar-man, purchased the lease in question, entered into possession of the leased premises, made the repairs which constituted his counterclaim, and all, as he testified, relying upon said letter of February-second, written by the plaintiff’s agent and shown to him by Johnson.

The important question, to be determined is whether or not the-two letters above quoted were sufficient to constitute a modification of the original lease. Concededly no other negotiations were had.. between the plaintiff or her agent and the defendant, prior to the= purchase of the lease by the defendant from Sugarman.

In, writing the letter to plaintiff’s agent, Johnson in no manner represented the plaintiff or her agent. " It will be observed thatMolloy was informed by Johnson that the defendant had already bought out Sugarman; and if so he had become legally obligated, to pay the rent as. specified in the lease, and so there was no consideration for plaintiff’s agreement to repair, even if we assume-, that Molloy’s letter was susceptible of such interpretation. Molloy was also informed that the defendant desired to build a paint: room on the top of the building and make some repairs to the-office. The defendant cannot complain that Johnson did not correctly inform Molloy of the condition of the negotiations between him and Sugarman. If what the defendant stated to Johnson was-incorrectly repeated to Molloy, it is the defendant’s misfortune,, and can in no manner affect the plaintiff’s rights. The repairs-made by the defendant, the cost of which he seeks to recover in. this action, did not include the building of a paint room, and only a very small portion of the cost was for repairs to the office. They were of a character entirely different from those indicated in .the,letter of Johnson to Molloy.

Plaintiff’s agent not having been correctly informed as to the-state of the negotiations between .Sugarman and the defendant, orín regard to the repairs which were desired by the defendant, hi® promise based upon such information, if made, was not binding: upon the plaintiff. It is quite possible, if the defendant .had built: a “paint room,” the plaintiff would have been willing to pay the-cost of repairing the office. Nothing of the kind was done or con

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templated by the defendant. It is apparent that the minds of the parties did not meet, and no binding agreement was made.

We think the letters, which constituted the entire negotiation between the parties, considering all the circumstances, are not susceptible of the interpretation contended for by the defendant. As we have seen, the lease was for a term of ten years. It had more than eight years to run after its purchase by the defendant. If his contention is correct and the holding of the lower court is sustained, the defendant will be at liberty, each year during the entire term, to expend in repairs a sum in excess of the stipulated rent, provided only he shall think such repairs reasonably necessary, and thus be at liberty to deprive the plaintiff of all income from the leased premises. Again, the defendant may terminate the lease by giving notice of his intention so to do three months before the expiration of any year. In the agreement contended for there is no limit to the amount of expenditure which the defendant may make for repairs; there is nothing to indicate their character, whether they shall be such as would add to the value of the property or make it more suitable for general use, or such- only as would serve the convenience of the defendant. Such repairs having been made by the defendant, whatever their cost, if his contention is correct he would be at liberty to abandon the premises and call upon the plaintiff to reimburse him.

The conclusion is reached that the interpretation placed upon the two letters in question by the court below is erroneous; that they did not in any manner change or modify the assigned lease or affect the legal rights of the parties; that the letter of Molloy to Johnson, which was shown to the defendant, imposed no legal obligation upon the plaintiff to reimburse the defendant for the cost of any repairs which he might make; that by such letter it was only intended to promise that if the repairs specified in the letter to Molloy were made, the plaintiff would be liberal in making settlement. Such is the language of the letter, and its meaning ought not to be enlarged, especially in view of the fact that it is sought to charge the plaintiff for repairs made during a period of five months a sum in excess of the stipulated rent for such period. We think no such agreement was intended by the

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parties; that no such agreement was in fact made by the letters put ■ in evidence, and which alone must be relied upon by the defendant.

Several of the objections and exceptions to the admission of ■evidence present such error as to require a reversal of the judgment, but as we are of the opinion that the two letters, which constitute the sole negotiation between the parties, aré not sufficient to change or modify the original lease, Or in any manner affect the rights of the parties, wé deem it unnecessary to discuss such exceptions.

It follows that the judgment appealed from should be reversed.

Judgment of the County Court and of the Municipal Court reversed, with costs.

All concurred; Laughlin, J., in result only.

Judgment of County and Municipal Courts reversed, with costs.