24 Barb. 9 | N.Y. Sup. Ct. | 1856
There are few subjects upon which greater diversity of opinion has prevailed than in regard to the manner in which time should be computed, in the case of a.contract like the lease in question in this action. The nature of the conflict that existed for a very long time upon the subject, clearly appears from the review of the previous cases made by Lord Mansfield, in Pugh v. The Duke of Leeds, in Cowper, 714. The true rule was undoubtedly laid down in that case, that the word “from” a day, may either include or exclude that day, according to the context and subject matter. And the court will construe it so as to effectuate the intentions of the parties, and not to destroy them. It is at the least very singular that the learned court which delivered this luminous decision should, but three years before, have given precisely an opposite judgment upon almost precisely the same state of facts. (See Doe v. Watton, Cowper, 189.)
The rule adopted in Pugh v. The Duke of Leeds is well stated in 2 Parsons on Contracts, 175, thus: that the computation shall always conform to the intention of' the parties, so far as that can be ascertained from the contract, aided by all admissible evidence.
Let us look at the terms of this whole contract, in the light of these principles. The lease bears date January 25, 1858. The premises granted are a brick yard ; and the landlord agrees to leave upon the yard all lumber then on said yard, and used for the purpose of manufacturing brick thereon, all arch irons and doors, and all wheelbarrows then thereon, theretofore used by Bennett, (the former occupant.) It also clearly appears that there were upon the leased premises, shafting, machinery fix
It is impossible not to perceive in all these provisions a careful design, upon the part of all these contracting parties, to give to the landlord the amplest security which the nature of the leased property or the means of the debtors admitted, for the large sums of money that might, in the course either of five or ten years, become due to him for rent. The power to convert the clay and other materials on the yard into merchandise and sell the same, and the quasi chattel mortgage on the brick to be manufactured on and from the plaintiff’s ground, to the extent of one quarter’s rent, are especially worthy of note, in my view of this case. It seems to me that all these circumstances and provisions are entirely in harmony with what is certainly a consistent reading and construction of the habendum clause of the lease, upon which the main question in this case arises. The tenants who had taken the plaintiffs’ lands for such purposes, and with such powers, and who had in substance mortgaged the brick they might make for .their rent, might well bind themselves to pay their rent in advance. As to the first quarter’s rent, the quasi mortgage could give little if any security; and as to the future quarters, the nature of the property, and its liability to depreciation and injury, seem to afford good reason to the lessor for insisting that the rent should not be suffered to accumulate in arrears, while the brick yard and its fixtures might be left to go to ruin;
As, according to the uniform current of authority since the decision of Lord Mansfield, in Pugh v. Duke of Leeds, the expression in this lease denoting the commencement of the term, viz. ‘from the first day of April next,” may be either inclusive or exclusive of the terminus a quo, as the parties may have designed; and as, immediately after this expression, there is another which seems to declare that the first day of April in each of the years of the term shall occur at its commencement ; (for the rent is to be paid in equal quarter yearly payments on the first days of April, July, October and January, in each year ;) and as these provisions are not only sensible and coherent in themselves, but are in entire consistency, when thus read, with the whole frame work of the lease, I am led to the conclusion that this term did commence on the first day of April, 1853, and included that day; and that the first quarter’s rent was payable oh' that day in advance.
By this exposition the whole instrument is made harmonious. Every word has its effect and operation. No transposition is resorted to. There is in fact no construction, in the primary signification of that word; for the parties have made a complete and intelligible work in the contract as they executed it, and it needs not the reforming hand, or the explaining powers of the court, to make it clear and unambiguous. “ There is no room for construction, and nothing for construction to do.”
It is with great diffidence and regret that I differ from the learned judge who tried this case at the circuit. If transposition is necessary, in order to get at the intention of the parties, he is undoubtedly correct in his view; but no rule is better settled than that transposition shall not be resorted to, unless it is necessary for the purpose of carrying into effect the intentions of the parties.
The term rent does usually imply some enjoyment, some opportunity to realize a profit by the use of the thing demised, before the rent is payable. But it may be noted that the com
But if the terms of the whole lease, taken together, do not indicate a clear intention to make the rent payable in advance, (and in my opinion they clearly do,) if they only leave it doubtful which mode of payment was intended, then we may look to the acts of the parties under this lease, and see if they have put a practical construction upon it. And it appears that the rent of the two quarters immediately previous to that, the rent of which was intended to be satisfied by the sale of brick for which this suit is brought, was paid in advance. It may also be observed that unless the rent is payable in advance, the landlord is really left without security for the last quarter’s rent of the premises; for the power of re-entry would be of no avail, after the termination of the lease ; and upon an insolvency occurring at any time during the term, the tenants might hold till near the close of the quarter, strip the demised premises of the movable property therein, dispose of all the brick made, and then, throwing up the lease, set the landlord at defiance. He would then have no redress but their personal responsibility. He has sought to avoid a reliance upon that with a care deserving, if it does not command, success.
Upon the whole, I am constrained to the conclusion that the rent of the demised premises for the quarter commencing October 1, 1854, and ending January 1,1855, was payable, by the terms of the lease, on the first day of October, in advance, and that as it remained unpaid, the defendant was justified by the
The judgment should be reversed and a new trial granted; costs to abide the event.
Brown, S. B. Strong and Birdseye, Justices.]