57 Minn. 155 | Minn. | 1894
Lead Opinion
We have examined all of defendant’s assignments of error, bnt it would be as useless to discuss them in detail as it would be tiresome to attempt to follow all the sinuosities of practice which obtained during the progress of this case.
The only assignments of error that have any substance, or at all go to the merits of the case, are those which relate to the construction of the provision in the lease, set up in the complaint, giving defendant “the privilege of another term of five years;” the vital question being whether it applies only to that portion of the leased premises described as No. 49 Washington Avenue South, or to the whole of them, including No. 47.
Our construction is that it has reference to the whole premises, leased as an entirety, and not to a part only. We have arrived at this conclusion on substantially the grounds stated in the memorandum of the majority of the trial judges, and which need not be here repeated. In addition to what is there said, we may add that the argument that the provision for a renewal of the lease did not include No. 47, because at that time plaintiff’s estate or interest therein did not extend beyond the first term of five years, would apply with equal force in favor of the proposition that the original letting of No. 47 was not for five years, because it also appears that plaintiff’s interest did not then cover the last five days of that term.
If the “privilege of another term” was of the entire premises it follows that, by voluntarily surrendering a part of them, the defendant, in the absence of any agreement to the contrary, waived his right to a renewal or extension of the lease. Indeed, the appellant-does not dispute this proposition, his only insistence being that the provision for another term only applies to No. 49. Had plaintiff’s title to No. 47 failed or terminated, so that he could only have renewed or extended the lease as to No. 49, a different question would have been presented; but it stands admitted by the pleadings that, before the five-years term had expired, plaintiff, in order that he might be able to perform his covenants, purchased a long-term lease of No. 47, of which fact defendant had notice before he surrendered it to plaintiff.
Judgment affirmed.
Dissenting Opinion
I dissent. The lease from Barge to Schiek, dated July 20, 1887, by its terms leases to Schiek the premises No. 49, and the basement and rear room of the adjoining premises, No. 47, for five years at a certain rent, with the privilege to said lessee of another five years upon a rent to be fixed by arbitration. Inserted in a subsequent part of the lease is the following provision:
“The letting of the leased ground above described as the basement and rear room of number 47 is subject to the conditions following: The building No. 47, aforesaid, has been leased by said Jacob Barge from one John Schulte, the first term thereof having-expired on the 15th inst., and said Jacob Barge claims another term of five years from that date, but no longer, and, his claim being disputed by said Schulte,- Jacob Barge agrees to defend his claim for another term of five years in the courts of this state, including the Supreme Court, and to pay the rent under said Schulte lease during the time to said Schulte or his assigns. In case said Barge should be dispossessed by said courts, he shall not be responsible in damages, but the rest of the rent of three thousand dollars ($8,000.00), payable by said Schiek to said Barge during the first term, shall continue the same without reduction.”
Here Barge plainly states that his own title to No. 47 lacks five days of continuing as long as the lease to defendant, Schiek, and even for that time his claim to it is in dispute, and he incurs no liability except to defend it in the courts, and, if he does so, shall not be responsible for damages if he is dispossessed, but the rent “payable by said Schiek to said Barge during the first term «ball continue without reduction.” Does not this fairly imply that, dui
“The letting of the leased ground above described as the basement and rear room of number 47 is subject to the conditions following.” What conditions is it subject to? The condition that Barge has only a limited interest in No. 47, which may fail even long before the end of the first five years. What letting is subject to these conditions? The letting for the first five years, or the whole ten years? Can there be any doubt as to the meaning of the parties on this point? When the different parts of this lease are construed together, the meaning of the jmrties is obtained by inserting after the description of No. 47, where it first occurs in the lease, the provision specifying the extent of the interest of Barge and the rights of Hchiek in No. 47, as first above quoted. Then follows the clause of leasing for five years, with the privilege of five years more.
The lease is poorly drawn, and it may be suspected that it was drawn on a printed blank which did not have space enough at the proper place to insert at length the extent of Barge’s interest, and the rights to be given Schiele, in No. 47, but the meaning is the same as if these things were there inserted.
It is not a new rule of construction which interprets a poorly drawn and inaptly worded instrument according to the real meaning of the parties when that meaning can be gathered with reasonable certainty from the face of the instrument by construing its different parts together and when a more strict and literal interpretation of it would defeat the intention of the parties, and work out results not contemplated by them. This lease must be construed in the light of the conditions that existed when it was made. The lessor cannot, by subsequently acquiring a greater interest in No. 47, procure a different construction.
But whatever difficulty there was in construing the lease as originally drawn, it seems to me the parties have removed that difficulty by the surrender as to No. 47. That surrender was not a
The language of this lease is, “with the privilege to said lessee of another term of five years,” and, when the option is exercised, it is an extension of the original lease, and requires no new writing, but operates as a continuous lease. Orton v. Noonan, 27 Wis. 283. See, also, Taylor, Landl. & Ten. (8th Ed.) § 332. The option being-exercised, the second five years of this estate are as invulnerable as the first five years, and have all the attributes of a vested legal estate in possession, which will not be defeated or affected by any such slight uncertainty or deficiency in the terms of the contract, or any such slight doubt as to the meaning of the parties, as will defeat an action for specific performance of n mere executory contract. Whether the surrender of the premises No. 47 would defeat the specific performance as to No. 4!) of a mere covenant for renewal of the lease, as assumed by the majority of the court below, the distinction as to which the majority of this court deems immaterial, it is not necessary to inquire. On well-established principle this is not such a case. On the contrary, it is a case where the second five years is as much a vested legal estate in possession as the first five years, and can no more be defeated by the surrender of a part of the premises than could the balance of the first five years left after such partial surrender. If in such a case
The judgment appealed from should be reversed.
{Opinion published 58 N. W. 874.)