Edward Barron Estate Co. v. Waterman

This is an action for rent, and the only point presented in support of the plaintiff’s appeal from the judgment entered in favor of the defendants involves the construction of certain clauses of a lease executed by the M. Fisher Company to the defendants on December 12, 1908, of certain premises in a building which was then in course of construction. Although the lease at the outset granted the demised premises to the defendants “for the period of five years commencing on the 15th day of January, 1909, and ending on the 14th day of January, 1914, at the monthly rental of $250,” nevertheless, a subsequent clause of the lease provided that, “In case the demised premises shall not 'be finished and ready for occupancy by the 15th day of January, 1909, the rent hereinbefore reserved shall abate and shall not be payable until said demised premises are ready for occupancy; but it is expressly understood that the failure to have said demised premises ready for occupancy by the 15th day of January, 1909, shall not be a cause for vacating, annulling or rescinding this lease, nor shall the lessees by reason thereof be entitled to any damage, rebate or recoupment except the

The scope, purpose, and effect of the lease of course must be determined from a consideration of it as a whole rather than by a resort to any individual clause thereof (Civ. Code, sec. 1641). So construed the lease must be given such an interpretation as will make it effective in conformity with the intention of the parties (Civ. Code, sec. 1643); and if its terms are in any way ambiguous or uncertain it must be interpreted in the sense in which the lessee believed at the time of making it that the lessor understood it (Civ. Code, sec. 1649); and if different constructions of its clauses may be otherwise equally proper, that construction must be given which will be most favorable to the party in whose favor the clauses in controversy were made (Code Civ. Proc., sec. 1864). Furthermore, the words of a contract, save in certain excepted cases not involved here, must be taken and applied in their usual and ordinary sense (Civ. Code, sec. 1644). The word “rebated” was doubtless used in the ordinary sense. Ordinarily, says Webster, “to rebate” means “to deduct from.” The word “entitled” evidently was likewise employed in the lease, and is generally and ordinarily understood to mean to give “the right to demand or receive ... to furnish with good

Tested by the foregoing statutory rule for the ascertainment of the intent of the parties to a contract (Civ. Code, sec. 1637), we have no doubt but that the trial court correctly concluded that the lease in controversy was sufficiently certain in its designation of the commencement and termination of the leasehold term, and also in its expression of the intent of the parties not to extend such term beyond January 14, 1914, save at the option of the lessees. In other words, the lease in our opinion was fairly construed by the trial court to mean that although the leasehold interest- was to take effect on January 15, 1909, nevertheless if the lessor’s delay in completing the demised premises operated to deprive the lessees of the use and occupation thereof on and after the date designated for the commencement of the term, then, and in that event, the rent was to 'be rebated, that is to say, proportionately deducted for the time that the occupancy by the lessees was delayed through the noncompletion of the building; and the term of the lease, if the lessees so desired, extended for the full period of five years from the date when said premises were ready for occupancy. We think it plain that the extension provision of the lease was intended for the benefit of the lessees rather than the lessor; and if so, must be construed as giving them the privilege of remaining in possession of the premises for the full term of five years from the date of their entry, while not imposing upon them the obligation to remain longer than the term designated in the leases by dates. The defendants, not having exercised the option granted to them for an extension of the leasehold term, were under no obligation to retain the demised premises beyond the date definitely designated in the lease for the termination of the occupancy, and consequently were not obligated to the plaintiffs for the rent claimed to have accrued subsequent to that time.

The judgment is affirmed.

Kerrigan, J., and Richards, J., concurred.

Lawlor, J., dissented from the order denying a hearing in the supreme court.