*1 GRUNDSTEIN, Plаintiff-Appellant, v. SUBURBAN MOTOR GRUNDSTEIN, INC., Defendant-Appellee, FREIGHT, Defendant-Appellant. District, County. Appeals, Franklin
Ohio Second 1952. No. Decided March *2 Harris, Marshall, Roth, plain- Carrington I. M. O. H. for T. defendant-appellant, tiff-appellant, H. Grund- Richard stein. Schmidt, Columbus, Kincaid, L. William for de- Dahlton R. fendant-appellee. OPINION WISEMAN, By J. appeal questions law from the is an This County. Court of Franklin of the Common Pleas declaratory judgment for The, filed an action rights requesting Court to declare of the purported arising lease entered into out of a between the grantors. defendant-company plaintiff’s The defendant- cross-petition comрany filed answer and an which upon specific performance prayed purchase an based for lease. which was contained alleged cross-petition H.' that Richard plaintiff, B. of the Yetta Grund- Grundstein stein, the husband claims, premises. in said an inchoate dower interest prayed to release the husband be ordered Defendant his inchoate The trial court entered equitable general relief. of dower and for of the defendant. decree in favor necessary appreciation A recitation of the facts is an 15, 1942, September of the сompany the defendant- issues involved. real offer to lease certain estate a written White, owned Three Thousand at an annual rental of Berkhemer and per Dollars, payable $250.00 at the rate month, day in advance on the of each month. first business respect With provided: to the duration term (6) “for a term of the war and six duration thereafter, beginning months 1942.” October provisions usually The rental contract contained other (cid:127) paragraphs being found in a lease. The last two as fol- lows: privilege purchasing “Lessee to described above have during оccupancy any time term at a con- ($25,000.00) price Twenty-Five sideration Thousand Dollars (60) by giving sixty days writing lessor notice in in- its *3 tention so to do. agreement “It is understood that this is to in be effective lieu of formal lease.” signed by defendant-company by The document was Riley, President, presence James R. in the of two witnesses. September 17, 1942, agreed On accepted Berkhemer White and and proposition writing, signing in both in the presence of two witnesses. The document was not acknow- ledged by parties, either of the it neither was recorded. The possession paid defendant entered into the rent accord- ing contract, to pos- the terms of the rental and still retains 28, 1947, session. On October Berkhemer and White con- veyed tiff, premises general by warranty plain- to deed Grundstein, Yetta B. on the same and' date executed an assignment original on the rental contract as follows: BY “ASSIGNMENT LESSOR received, undersigned hereby sells, For value assigns assigns, transfers B. to Yetta Grundstein and all in- thereby terest in the within lease and the rents secured. Signed, 28, Oct. F. Wm. Berkhemer
H. R. White” 1, plaintiff paid November to the rent The defendant 31, 1950, January the rent was ten- after which 1947, up to plaintiff. dered to litigation provoked are as follows: which The events 6,1949,plaintiff defendant notice on the served December On conclusion that premises her was based on which to leave 27, 1949, On December terminated. contract had the rental writing on the rent plaintiff defendant notified the 1950, per On February 1, month. $400.00 would be and after writing gave 1950, January 5, to option notice the defendant accept the to exercise and elected had 16, $25,000.00. February purchase real estate to recognize writing the exercise 1950, refuséd the rent at the rate option the tender of аnd refused of the of 1950. On March sum of February per action was instituted month. The $250.00 paid into court the defendant option price rental $25,000.00, in the mentioned being contract, the Clerk still held amount which litigation. pending the outcome of this Courts decreed: The trial court (a) subsisting be- a valid rental there was That defendant; plaintiff and tween (b) provision meaning “for dura- effect of That the (6) months thereafter” and six war tion used became six lease, contract, term of the describes the 1, 1942, until and does not terminate effective October peace has been formal deсlaration months alter there nations; belligerent between (c) option purchase defendant exercised could be during any six viz.: until the term time peace between months after a formal declaration belligerent nations; (d) option right had the to exercise the That January 5, (e) not month month tenant but That defendant subsisting premises occupied lease. a valid and said under duly exercised further found that the defendant Tlie Court purchase, including proper tender of the price, H. purchase Yetta B. Grundstein and Richard but that convey Grundstein, husband, have failed and refusеd her decreed that defendant. The Court further said Grundstein, H. who was B. Grundstein and Richard Yetta join conveyance purpose for the in said releas- ordered to premises, ing shall execute his inchoate of dower said *4 good for said and sufficient deed and deliver to defendant days premises upon ten so to do within and that their failure operate entry, shall as such con- from date of the decree veyance. $25,000.00placed deposit ordered Court the upon with the Clerk of Courts delivered B. Yetta Grundstein delivery recording by of the deed or the of the decrеe County Recorder. The Court further- found that Yetta B. by Grundstein had retained a for $250.00 check tendered February, defendant for the rent for month and that there is due the sum of $50.00as rent for period 1, 1950, 1950, 6, from March to March for which judgment against sum the Court rendered the defendant. question validity The first raised involves and the legal effect of the rental contract or lease. We have no dif- ficulty finding that the rental contract was intended parties paragraph a lease. The last the con- provides agreement tract that is to be effective in lieu of a formal lease. At the outset it is well to state that presented upon equitable issues prin- must be determined ciples. “Equity substance, looks to the and not to the form.” rights parties equit of the under the contract and the granted able relief would be the same whether the Court denominated the document a lease or a rental contract. defectively A equity executed lease is treated in aas con Lithograph Building tract to make Company a lease. Watt, 96 declaratory judgment Oh St 74. In action, especially cross-petition where defendant in its specific performanсe, rights parties will be de clared, equity. Distributing whether in law or R. K. O. Cor poration Realty Company, Ap v. Film Center 438, What was provided: duration the term? The (6) present “for a term of the duration of war and six beginning 1, months thereafter October 1942.” The Court judicial will take notice that the war referred to is World agreed by War II. It is counsel for both and defend ant words “duration of the war” are am biguous. Plaintiff contends that the words “duration of the present war” mean the continuation of hostilities and that parties give meaning intended to to the words used. August 14, 1945, Hostilities ceased on and six months there February 14, 1946, aftеr would be plain which is the date the tiff claims lease terminated. If the lease terminated 14, February the exercise of the came too late. ambiguity parol Where there is an evidence is admissible parties. to show the intention Sandifur, Hoover v. (2d) (2d) (1946), Wash. 171 P. 168 A. L. R. testimony 170. Under this rule was taken to show the inten tion of the time the lease was- executed. evidence occupied by shows then de fendant-company were taken over the United States Gov-
257
“for duration
under a
the term of which was
eminent
(6) months thereafter.” The defendant-
war and six
being compelled
company
desired to secure other
to vacate
president
premises to
of the
conduct its business. The
de-
fendant-company
respect
wanted
with
to duration
lease
in its terms to the lease taken
the Government
similar
occupied.
premises which it then
This information was
conveyed to the
who drew the lease here
broker
involved.
agents
defendant-company clearly
The
it
stated that
present
wanted a lease “for the duration
war
six
(6)
defendant-company
months
thereafter.”
wanted
provision
very
this
lease for the
obvious reason that
occupy
long
premises
it
desired
new
as the United
occupied
premises
States Government
which it
leased.
deliberately
accomplish
The words were
chosen to
a definite
purpose.
agent
The evidence shows that
broker
for the lessors.
relinquished
The fact that
the United States Government
premises formerly
possession
occupied by
the defendant
prior
sometime
to the time that difference arose between the
hereto,
parties
is irrelevant and cannot be considered in
determining
parties
intention of the
at the time the con-
tjie
might
tract wаs
executed.
United States Government
occupying
still be
under the
terms
its lease.
Garage,
Minkin,
App.
(1949),
Malbone
Inc. v.
272
Div.
(2d) 327,
opinion
72 N. Y. S.
affirmed without
in
258 Furthermore', Kan., 819, (1921), 197 P. is well principle that where words are sus of law established meaning, adopt ceptible the courts will than one more placed interpretation have v. which the themselves that upon Courtright Scrimger, subsequent acts. them their al, Light Cincinnati v. Gas Coke Oh St Co. Ulrich, App. (1915), 278; Fagan 53 Oh St N. Y. S. 37. In the Div. principle application of of law it February eighteen months after is well to observe that over 14, 1946, plaintiff claims the lease the date on which the terminated, defendant-company letter to the the lessors recognized validity of the lease and that it still was defendant-comрany by requesting do some effect work responsibility your and stated: “This is as outlined our you having contract. We sure the value needed are see Also, months arrive.” in the work finished before the winter *6 28, 1947, assignment of the dated October the lessors the lease still in considered effect. legal II In a the existence World War continues sense by peace procla until or terminated ratification treaties competent authority. mation of Ellis Fraternal Aid v. (Cases cited) supra; 142, Union, Jur., 56 Am. Sec. 13. Vol. jurisdictions A research the courts in other discloses that given interpretations hаve of the different to the words “duration present 13, Phrases, war.” Vol. and Words Permanent 641, Supplement, Edition, 168; P. 1951 Cumulative P. 168 Vol. 173, Book, However, A. L. R. 1951 A. L. R. Blue P. 683. and an examination of these will that authorities show the courts always attempted parties intention of ascertain give and the words “duration effect thereto. where the court cases construed war” or “duration of the hostilities, interpreta war” to mean continuation of such piece some tion was based on of evidence which indicated that parties give meaning intended to the words used. in On this issue we with the accord are trial court. provisions Thus far we have discussed the of the lease and rights parties standpoint legally from the a lease. lease in the instant case did executed not fall GC, provides provisions §8517 within the that leases years exceeding required not three are not for a term to be provided §8510 in GC. The defendant executed as during seeks relief years. People’s period beyond Building the three a McIntire, al., 28, Savings Ap 14 Loan & Co. v. et Oh 31. provides writing, signed, Sec. 8510 that a lease must GC be acknowledged by and two witnesses lessors. The attested acknowledged by not lease is defective that was lessors.
259 defectively rights of under a executed What are the years? principle the term exceeds three Ohio lease where posses if the that at lessee takes is well established law rent, defectively pays a executed sion under a tenancy implied. of the term is The duration upon provisions tenancy implied depends which is Wineburgh Corpora payment Toledo of the rent. v. tion, 219, 222; Lithograph Building Company Oh St v. 125 Shooting Watt, 74; Schwartz, 98 Oh St Toussaint Club v. 440; Company & et St Baltimore Ohio Oh Railroad v. 161; West, Distributing Corporation KR 57 Oh St O v. Film 438, 449; Realty Company, Ap Shell 53 Oh Petroleum Center (2d) 340, (1935, Jackson, A., Corp. Circuit); U. S. C. 77 F. C. 6th v. (2d) Marshall, 973, Newberry (1942, 125 F. J. J. v. Circuit); A., 54, pages 789, Vol. Sec. 6th 24 O. Jur. U. S. C. C. (2d) 685, pages R. 695. Vol. 6 A. L. 790. See also although payable annually, monthly If the rent is reserved case, installments, tenancy year as in instant a from West, year implied. Baltimore & Ohio Co. v. Oh St theory principle of law rests on the 185. This legal tenancy A a does create estate. law a defective lease implied provisions except all of the lease are effective is the Watt, Lithograph Building Company term. v. duration 74, 88; Company & Baltimore Ohio Railroad St People’s Building, West, 57 Oh St Loan & McIntire, al, Savings Ap Thus, Co. v. Oh tenancy year year. law the defendant a held 1, 1949, year October the defendant entered new and on 5, 1950, January option, when defendant exercised its it did “during occupancy,” provided term of so rental plaintiff, however, strongly urges contract. month, tenancy under from month or at held year year granted only best from under such Even at law under that relief can tenancy. This result would obtain at law. *7 year year tenancy a the defendant purchase; properly exercised the but we in are equitable equity, principles ap where a court must be remеdy plied Distributing Corp. complete more is and where a afforded. R K O Co,. Realty Ap 438, Filmv. Center 53 Oh 446; Hennessy Moreland, Ap v. Oh Wineburgh plaintiff strongly The relies on v. Cor Toledo poration, principle 125 Oh St and claims the an nounced in that case controls and that defendant holds tenancy. agree. monthly a We do not In under that case equity; the action was at law and not in rent was re annually monthly served and not as in the instant case. The opinion when it said recognized in its distinction this court following: page on 223 the remedy equitable is avail- dr other reformation “Whether circumstancеs, it similar under or to the landlord able question action, necessary for that in this not to decide is presented.” is not here performance equity part instrument out of takes the (cid:127) operation the Possession taken under statute. properly part performance. The trial court lease constitutes equity decreeing equity powers, invoked its occupying and under a valid was defendant subsisting until six months which did not terminate belligerent signed by treaty peace been a had after formal authority competent proclamation by a formal a nations or ending the war. had been specifically pray not the defendant did instant case contract, neither did the Court for decree a of the rental a reformation although reformation, facts would warrant such for and had been asked If a reformation reformation. acknowledgment. only No affected decreed it could reformation have respect required the terms of with was one, instances, a this is reformation lease.' In certain granting equitable prerequisite not a the instrument is Company Elizabeth The Globe Insurance relief thereunder. W. follows: syllabus Boyle, St 130. Thе fourth is petition shows that the “When in such case the record court, reformation, warrant an order facts found order, proper judg- that, final without such formal reviewing rendered, it is not error in a court has been ment to judgment.” affirm grant the failure to on states that The court only prejudicial; it was not matter of reformation was form, reversed. cannot the defect the lease consists in the hold that where We acknowledge as, provided of lessors failure provisions GC, §8510 and terms of the lease lease and where reformation, require reformation of the not dо respect acknowledgment necessary is not to the with equitable granting prerequisite relief thereunder. responsible that she for the The contends defendant-company alleged into between the entered ground and White that she and Berkhemer assumed possession responsibility. took under no .possession. plaintiff pur the lease and is still property from Berkhemer and chased while White open possession. in and notorious the defendant
261 assignment of interest of Berkhemer and plaintiff an took terms, lease, knowledge lease, its and with in the White right Any which defendаnt possession by defendant. may against White be asserted Berkhemer and assert could Feldman, Kemp plaintiff. against 84 v. enforced and Oh 259; Brown, Hedges, Ap 15 Oh Schloss v. Ap Dunkel page Ap Court on 296 the latter case the et holds: required Schloss, though not attested as “The lease GC, good as a An contract. §8510 between was may operate equit- an imperfectly to- create executed lessee, plainly shown the instru- if it be that in the estate able accepted and was and treated as a lease was intended ment cited) (Cases lessee.” such purchaser, fide he would take a bona “If Brown was not right equitable subject property which is now ad- Holzberger. against It is the existed settled to have mitted purchaser of land is in the actual in Ohio rule possession him, chargeable party, the third known to of party possession any equitable of title notice with (Cases cited) prove may to be.” the same whatever finally held: court On “The undisputed shows that Brown was evidence aware premises by He, therefore, possession Schloss. of the acquired Holzberger, subject equit- ownership arising rights of under the unrecorded contract Sсhloss able of lease.” Jur., page Sec. 13. also Vol. O. See The contention is made the trial court erred in ren- that Richard requiring against dering judgment H. Grundstein right of dower. to release his inchoate cross- him petition, Grundstein, plaintiff, H. husband Richard although erroneously party-defendant, mentioned places party-plaintiff. several as a The de- the' record at fendant, Grundstein, H. filed a Richard waiver of service appearance, entered his but filed no of summons and answer. cross-petition allegation H. in the is that Richard The stein is the Grund- plaintiff, Grundstein, B. husband of the Yetta prеmises. part interest in said A inchoate dower an claims cross-petition prayer of the is that Richard H. Grund- releasing execute the deed with his wife ordered to stein be his claim in the provisions no in the for dower. There are nor which would indicate the lessors were to'convey agreed free dower and much married less grantee respect assignee as the to the with defendant, cross-petition, its the lessors. did not attempt to make this matter an issue and no evidence was allegation cross-peti- taken thereon. The in the contained effect that Riсhard H. Grundstein tion to band is in accord with the facts. was the hus- and claimed his inchoate dower *9 proper against to Was it enter a decree H. Richard Grund join requiring him to deed stein with his wife for the purpose releasing right of his inchoate of dower? We right contingent do not think so. of Inchoate dower is a in the land of the interest consort and is of substantial right to away value. The dower inchoate cannot be taken by any GC; act of the nor barred consort. Sec. 10502-1 Vol. page Jur., 14 In O. Sec. 66. the instant case the husband right has same the inchoate dower as the of wives lessors wоuld have had if the lessors were married. The fact party the husband was made a to the action is of no legal consequence; against no decree can be entered on husband unless the whole support record there is some pleadings supports for decree. The nor it. Neither the evidence People’s Savings Parisette, Bank al., Co. v. et 450; Feldheiser, 523, 530; 68 Oh St Jewett v. 68 Oh St Ur Szelaszkiewicz, Ap 4; Caple Crane, al., v. Ap 461; Oh banski v. et Boring, Edmund v. et 30 O. C. A. McKinney, Koester v. Abs In McKinney, Koester v. Hornbeck) (opinion by Judge joined the wife the husband mortgage in a which was foreclosed and in the action the party-defendant. wife made was may It was held that she against assert her inchoate dower the mechanic’s liens party defendants, holders who were made filed no answer though even she petition. Boring, Edmund v. it was sign held that where the husband did not a contract of sale wife, owner, with his in a suit right the land will be ordered transferred performance, specific subject for to the husband’s contingent of dower. In case, the Urbanski it was held option purchase an signed that where of the is not the wife owner, purchaser specific and the seeks performance, subject dower, granted. wife’s a decree will be In the Caple Crane, case the court found from the evidenpe purchase provided that the dower, conveyance free being and the wives not owners parties, made the cause remanded. was The court on 467 states question for determination as follows: presents important “This an ques- somewhat difficult tion, namely: specific performance Shall a decree of be against requiring entered defendants them to execute join; or, if the their shall wives refuse in which wives deed husbands, specific performance against join, a decree of to with an abatement purchase price sufficient cover from the contingent of the dower of the the wives?” worth discussing remedy nature of the afforded to the the purchaser to be entered and the character decree length People’s The court discussed at Savings and followed the case Parisette, al., supra. finally Bank Co. v. et The court being parties not wives the owners held to the suit, specific performance requiring a decree for con- veyance free of could be entеred and remanded the dower People’s Savings The in The case to the lower court court. Parisette, al., supra, Bank had it a state of Co. v. before presented in the instant and dis- facts similar to those case may decree entered. We cusses the character quote which opinion, beginning page 460: from the court’s specific performance plain- “What was the demanded, breach, any? what the if tiff the were vendor, husband, vendee, plaintiff.' paper itself information that it when carries the drawn contemplated to be executed some оne other than the vendor, and since the was aware that he had living, person inference is natural wife that she was the signature expected. paper whose that she had not made no inchoate been showed' had further *10 signed, and the fact found is she had that agreement sign property, or to sell the or release her the absence of her Furthermore, right dower. of signature suggest by Company would a her. The refusal therefore, knew, dealing it was that with the husband alone property, as to his and title the it knew that the the compelled sign, that, therefore, could nоt be to wife contract was to include her dower. tract which but that impossible specific of if execution construed accepting It knew that it a was con- purport any not its face did to sell interest husband, especially purport did not to agree any convey sell or to inchoate dower of the wife. In Company agree pay of affairs the this situation chose to to just stipulated price option purported the sell. for what the to fraud, overreaching, any No or or of kind is mistake convey charged. ready just to vendor is what the stated obligate convey. terms of his contract Company him to How can the import reasonably demand that the court into by stipulation convey containing deed the contract a to a a against right, agreement no covenant this dower when of that character, respecting any kind, of nor incumbrances is ex-
pressed, probability, in all such a demand and when had been vendor, comply he would refused to with have it? We think cannot. The effect of the con- it construction by attempt for be either to to tended counsel would arrive at absolutely process admittedly a to a sum be deducted payment speculative, suspend por- of to the a considerable or purchase grantor joint money during the tion the to the wife, which, us, lives himself and his it seems to could when contemplation within never have been the the optional signed. Plaintiff was was a court pressing inequitable equity an demand. We think it was plaintiff’s properly refused. own construction Company is in the attitude one who takes promise to do that it is he another known cannot except by perform person. the concurrence of a third Such purchaser unсertainty contracts with full notice of the at- tending ability perform, and, having the seller’s injury, extraordinary been misled aid of a court of his cannot now ask the loss, repairing any, if conscience such as complete he has sustained the vendor’s his con- failure tract.” See, also, Christy, 160, 174; Barnes Oh St Vol. 46 A. L. R. 748. 756. the Parisette case must be observed that purchaser sought who instituted the action decree against purchaser the wife the same manner against instant seeks case a decree husband. sign that case the wife did not the contract of with sale who was the sole owner. The husband lower court decreed plaintiff against that not entitled to relief the wife that was not entitled to a deed from the husband, except upon payment purchase money of the entire provided option. application for in the In the of the law People’s Savings Parisette, in The laid down Bank Co. v. case, opinion in the facts instant we are of the n against not entitled decree judgment Richard H. Grundstein. husband. On this issue the is reversed. Plaintiff contends that rendering trial court erred in money judgment portion $50.00 for for á of the month of March, trial court found had February, 1950, retained a for for check rent the month of against rendered and also $50.00 defendant for sixty day rent March March 1950. The period *11 giving in the lease after of stated option notice exercise of 6, expired Apparently March 1950. the court' con- up expiration cluded rent owed until the sixty period day the cise at the termination exer- became We effective. are in accord with judgment finding of the trial court that the defendant up 6, 1950,' stipulated owed rent until March the rate obligated pay the lease and was not rent thereafter. petition, plaintiff consequential her did not ask for may given or coercive relief. Such additional relief if properly pleaded. American &Life Accident Insurance Com- Kentucky Jones, Admr., pany 287, 152 Oh St 297. grant Whether the trial court could relief enter- coercive ing money judgment presented properly is not to this Court question for determination. On this cannot be complain judgment heard to is not appeal. as the was in her favor and she prejudiced thereby. The defendant not file did a cross- The contention inequitable it would be specific performance period advancing enforce lapse eight years values after is not tenable. The property fact that the has increased or decreased in value since the contract was executed will not of itself warrant a Thompson refusal to enforce its terms. Property, on Real Vol. Sec. 1335. We assigned, have although considered all errors separately discussed, assigned made, find no errors well except judgment Number ten which relates erroneously (cid:127) against entered Richard H. Grundstein. On this issue the is reversed. unsatisfactory Because of the condi- question tion of the record on this the cause will be remanded proceedings for according further to law. 'HORNBECK, PJ, MILLER, J, concur.
ON APPLICATIONFOR REHEARING No. 4680. Decided March By THE COURT.
Application rehearing is denied.
HORNBECK,PJ, JJ, MILLER, WISEMANand concur.