2 Trans. App. 355 | NY | 1867
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 *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 BOCKES, J.
Affirmed. *561
