Schnitman v. Husted

Plaintiff and defendants are, respectively, successors in interest of the lessee and lessors under a lease of real property in San Francisco. The lease provided for a renewal term of ten years without definitely fixing the amount of rental for such renewal term. The parties being unable to agree upon the amount and the arbitration provided for in the lease having failed, the plaintiff brought this action in the Superior Court and had the court fix by judgment the amount of rent to be paid under the terms of the lease during the renewal term. The defendants appeal from the judgment claiming that the court erred in its interpretation of the lease because it decided that de

It is only necessary to set out herein two clauses of the lease, but it should he stated that at the time of the original lease the land was vacant and the lessee agreed in the lease to erect a. certain building thereon. These two provisions follow:

“8. The lessor to pay all state, city and county taxes which may be assessed upon the real estate only. The lessee to pay all like taxes that may be assessed on the improvements during the entire term hereby created, and the same shall be paid to the first party at least five days before the same shall become delinquent by law and said second party agrees to pay all assessments that may arise out of the improvements on said property or of the streets or sidewalks surrounding the same, to the end that the income from the rental above specified may• be net to said first party and not subject to deduction or expense of any hind connected with the ownership or maintenance of said property.” (Italics ours.)

“16. That the lessee may extend the term of this lease an additional period of ten years on the same terms and conditions as herein stated, except as to the amount of rent; that the rent for said additional period shall be, before and within sixty days before the commencement of said additional term, settled and fixed between the parties hereto if they can agree thereon. If the parties hereto cannot agree upon said rental for the succeeding ten years then the same to be submitted to appraisement. The parties each to select an appraiser and if they in turn cannot agree, the appraisers to select a third whose decision shall be final. The amount of the rent to be calculated at the rate of 4%% net on the appraisement of the land.” (Italics ours.)

At the trial the appellants took the position that the terms of the lease were ambiguous and evidence was offered to show the intention of the original parties with respect to the payment of taxes. The finding of the court upon this evi

A full copy of the lease is set out in the judgment-roll—in the findings of fact. The lease must be considered in its entirety to ascertain the intention of the parties. (Civ. Code, sec. 1641.) The interpretation of the language used by the parties is not to be arrived at by considering the questioned clause as if it stood alone but by consideration of the entire instrument and, if it appears therefrom that the parties have used a word or expression in a certain sense, that meaning will be imported which the parties have, shown they intended by other parts of the instrument. (Pringle v. Wilson, 156 Cal. 313 [ 24 L. R. A. (N. S.) 1090 , 104 Pac. 316 ].)

In clause 8, above quoted, the parties have defined the sense in which they have used the word “net” and in that paragraph it is plainly apparent that whatever other deductions they contemplated should be made to arrive at the net rent, taxes on the land was not one of them. There they say in almost direct words that if the lessors pay the taxes levied against the land and the lessee pays other taxes and assessments the rent reserved in a definite amount for the first ten years will be considered to be a net rental to the first party, the lessors.

Appellants, by affirmative allegations in their answer to the complaint, set forth that the parties to the original lease meant and intended by the language of paragraph 16 of the lease that the lessee should pay, among other charges, the taxes levied upon the land. By statements of their counsel at the trial and by the introduction of evidence of parol declarations, appellants actively led the court to make a decision or finding upon the issue thus tendered. The evidence on that point being conflicting and appellants admittedly being unable to attack the sufficiency of such testimony, the decision upon that point also requires an affirmance of the judgment. Appellants cannot remove from the case, after an adverse ruling, the issue which they tendered; nor can they now claim they are not bound by the understanding between the original parties when they thus sought to so hind the respondent who is likewise a successor to one of the original parties. There is no conflict between the findings and any particular clause of the lease because the findings set forth the lease as an entirety.

The judgment is affirmed.

Sturtevant, J., and Nourse, J., concurred.