Buckmaster v. Thompson — 36 N.Y. 558

Majority

p. 558

Charles H. Buckmaster v. John Thompson and others.

Headnote

Where a covenant in a lease is so ambiguous and doubtful that it is difficult to ascertain its meaning, an action to compel its specific performance will not be sustained.

A' clause in a lease as follows: “ And the party of the first part hereby agrees, in case the parties of the second part shall then be tenants of the premises, to first offer the said property so demised for sale to and purchase by them for the sum of $25,000,” does not mean that the lessor agrees, so long as the lessees should be tenants of the premises, to offer them for sale to them at $25,000. The promise is imperfect and incomplete.

The defendant Thompson, by lease, dated April 28,1862," demised' to- the plaintiff, and .to David Logan, his deceased partner, certain premises in the city of Brooklyn, for one year, from May 1,1862, with a privilege of continuing for an additional year, provided notice in writing was given ■ before February 1, 1863. The lease contained a covenant not to underlet, nor to occupy for any business deemed extra- ■ hazardous, and that if the premises became vacant during ■the term, the lessor might re-enter and relet the same. , It then proceeded as follows: “And the said party of the first part hereby agrees," in case said parties of the second part shall then be tenants of said premises, to first offer the said property so demised, for sale to and purchase by them, for the sum of twenty-five thousand dollars.” The plaintiff, the lessee, alleges that he incurred large expense in anticipation of a purchase under this provision, that, during his term and again near its end, he gave notice to the defendant that he wished to purchase for $25,000, under the said provision, and ' requested a deed. ' The defendant refusing to comply with such request, the plaintiff filed his bill asking a specific performance under the clause quoted. The referee held that the action could not be "sustained, and the General Term of the second district affirmed the judgment entered upon his report. The plaintiff now appeals to this court.

p. 559

Man, & Parsons, for the appellant.

F. Byrne, for the respondent.

While it is quite difficult to decide what is the real meaning of the covenant in question, it is not so difficult to determine what it does not mean. I should not readily adopt an affirmative construction, but I am clearly of the opinion, that it does not mean what the appellant claims, viz.: “ that the lessor agreed so long as the lessees should be tenants of the. premises (in case said parties of the second part shall then be tenants), to offer them for sale to them at $25,000.” “ That there was an absolute agreement to offer the premises to the lessees at $25,000, with the sole proviso that the lessees should then be tenants.” This construction does not relieve from the embarrassment occasioned by the words “ then ” and “ first,” but practically ignores their existence. The sentence in question is an isolated one. Neither in the sentence, or before or after it, do I find any subject to which the word “ then ” can properly be referred. Neither can any appropriate place or meaning be assigned to the word “ first,” and yet they have both been written down, as forming a part of the terms of the proviso. By the appellant’s argument the word “ first ” . must be ignored entirely, and the word “then” must be construed to mean “ during the term ” or “ so long as.” To write out the sentence, with this modification, will be found to be difficult. Indeed it cannot be done, and make a complete or intelligible sentence. I do not think it safe to adopt a construction which requires the abandonment of a portion of the language, and an inversion of another portion. Neither do I think the contract can be construed as claimed by the respondents, who read it thus: “ In case the lessor offers the property for sale for $25,000, then, he will first offer it to the lessees at that price.” To reach this construction, it is necessary to omit as superfluous the words “ in case said parties of the second part shall then be tenants of said premises,” and interpolate the words “ in case the said lessor determines to sell at $25,000. This would perfect the

p. 560

respondents’ construction, and nothing less would accomplish it.

The proviso is imperfect and incomplete. In my judgment, it does not contain an absolute agreement to sell to the lessees for $25,000, during or at the expiration of their term. The plaintiff’s claim for a specific performance is based upon that idea and must therefore fail. In any event the claim is too doubtful and ambiguous to sustain the present action. (2 Story Eq., § 64.)

Judgment should be affirmed.

All concur, except Davies, Ch. J., and Bookes, J.

Affirmed.