Bickford v. Kirwin, 30 Mont. 1

Bickford v. Kirwin

30 Mont. 1 | Mont. | 1904

MB. CHIEF JUSTICE, BBANTLY,

after stating the case, delivered the opinion of the court.

1. At the hearing the respondents submitted a motion to dismiss the appeal on the ground that the record does not contain a copy of the judgment roll. There is no merit in the motion. It is true there is no formal roll consisting of the papers enumerated in Section 1196 of the Code of Civil Procedure, for the obvious reason that no formal answer was ever filed in the cause. The only papers which could be incorporated in the roll were the complaint, stipulation — with the exhibit attached — the judgment, and bill of exceptions^ There were no formal findings. All the papers mentioned are found in the record, properly certified as constituting the judgment roll, and, taken together, must be so considered. The stipulation was treated by the court and the parties as amending the complaint and presenting an issue as to the installment due on November 15th. In so far as it presented an issue on the part of the defendants as to this item, it performed the, office of a formal pleading.

2. The point is also made by the respondents that the district court had m> jurisdiction to render judgment at all, for the reason that, it being in fact an agreed case, the controversy was not submitted with the formalities required in such cases by Section 2050 et seq. of the Code of Civil Procedure. The case does not fall within the purview of these sections. They authorize judgment without action where the parties observe the necessary requirements, and the jurisdiction of the court depends upon observance of these requirements. In the present-case the court acquired jurisdiction by the filing of the complaint. Any error intervening, thereafter was error within jurisdiction, and subject to review only on appeal. But if it be conceded that the court was in error in undertaking, at the instance of the parties, to determine the question of the liability of the defendants, under the terms of the lease, for the installment which was not in fact due at the time the action was commenced, yet the defendants may not question its action in the premises, because the decision was in their favor, and they have not ap'*6pealed. In urging this point they assume a position inconsistent with that assumed in the remainder of their1 argument, whereby they seek to sustain the judgment as correct.

3. Counsel for the appellant argues that the judgment, in so for as it sustains the contention of the defendants as to' Eirwin’s option under the lease, is erroneous. This contention submits to this court the question what meaning should be given to the expression “during occupancy of said building” in the second paragraph of that instrument. This paragraph is crude and inaccurate in its statement, in that the covenant therein expressed is on behalf of the heirs, executors, administrators or assigns of the respective parties. But from the other provisions of the instrument it is clear that the parties, in contracting with each other, intended, but failed, to follow the usual form of expression. The contention is that the anomalous expression “during occupancy of the building” is equivalent to the expression “for and during the term,” the form of words ordinarily used, and granted no option whatever to the respondent Eirwin. Counsel for respondents argue that the parties in drafting the contract, used a printed form, and erased the words “for and during the term,” substituting therefor the other form of expression, thus clearly indicating their purpose that Eirwin should have the option claimed. They cite Section 2216 of the Civil Code as the rule of interpretation to be applied. It does not appear, however, that a printed form was used, or that any erasure or substitution of words was made. So far as the record shows, the instrument was written by the parties at the time of its execution. Nothing appears showing the circumstances under which it was drafted and executed. The stipulation reveals nothing further than that at the time the controversy arose, on October 15th, each party insisted on its own construction of the contract. This court is therefore left to ascertain the intention of the parties from the terms employed by them. In this connection Hie rule must be borne in mind that the whole of a contract is to be taken together, so as to give effect to every part— if reasonably practicable — each clause helping to interpret the *7other,, (Civil Code, Section, 2206), as well, also, as another familiar rule, that the words of an instrument, as between conflicting constructions', are to be construed most strongly against him whose words they are (Civil Code, Section 2219). Examining the instrument, we find that under the first paragraph the premises are let to the defendant Kirwin for and during the full term of two' years, unless the contract is sooner forfeited. This provision is clear and explicit, and without condition, except that upon default of the lessee the landlord, at his option, may, as provided in the third paragraph, upon notice re-enter. There is no express covenant on the part of the lessee to occupy, yet that he shall do so' is implied. ITow long, should the occupancy continue ? Certainly during the term, unless," by express provision or clear implication, the intention was otherwise. The forfeiture clause was clearly for the benefit of the lessor. He might or might not enforce it at his own, option, although the enforcement of it would determine the lease. (Taylor’s Landlord and Tenant, Section 492.) The lessee could not elect that the lease should be void upon a forfeiture of any of its covenants, nor could he vacate the premises and avoid liability for rent, except by consent of the lessor. (Id. Sec. 492; Creveling v. West End Iron Co., 51 N. J. Law, 34, 16 Atl. 184; Wood’s Landlord and Tenant, Sec. 513; Leatherman v. Oliver, 151 Pa. St. 646, 25 Atl. 309.)

Are the words “during occupancy of said building” in the second clause to be construed as modifying these provisions, so as to leave it optional with the lessee to enter upon the occupancy of the premises and to become liable for the rent at all ? Surely not. Yet this would be the result if respondents’ claim should be sustained. It is as strongly implied that he should continue his occupancy for the term as it is that he should enter upon it in the first instance, for not only is the term absolute for two years, subject only to the proviso for re-entry, but there is also a covenant in the last paragraph that the lessee should surrender the property “at the expiration of the time herein recited.” This clearly manifests the intention of one to let, *8and of tlie other to. occupy, the premises for the full term of two years- at the stipulated rent, subject only to the option reserved to the lessor. The second paragraph, therefore, though the expression “during occupancy” be construed most strongly against the lessor, can have no- other meaning than that the rent should be due and payable at the stipulated times, so long as the landlord did not re-enter upon default and put an end to the occupancy. The expression means “while possession continues,” that is, while the term continues; and the whole instrument, taking.all its provisions together, must bear the construction we have given it, or else it must be held to be inoperative from the- beginning. The judgment of the district court should have included the installment due on November 15th.

The cause is- therefore remanded, with directions- to amend the judgment- accordingly.

Remanded.