92 W. Va. 681 | W. Va. | 1923
This controversy involves the construction of the renewal clause of the lease of a building on Market Street in the city, of Wheeling. The action is unlawful detainer, the verdict was for plaintiff upon a peremptory instruction to find such verdict, and judgment was rendered accordingly.
The lease is between Julia Hacquard, the lessor, and Herman Sweetwine, the lessee, and is dated the 14th of September, 1916, and leases a three-story brick building known as No. 1030 Market Street in said city, and is for the term of five years a.t $100.00 per month, payable in advance, with the usual provisions against sub-letting without the written consent of the lessor, and right of re-entry and possession by her upon failure of the lessee to comply with any of his stipulations ; and with the usual covenants on the part of the lessee to pay the rental promptly and to keep the premises in’ good repair, natural wear and tear excepted, and to deliver the premises in such good repair and order at the expiration of the term.
The provision of the lease over which the litigation arises is as follows: “And it is further agreed that party of the first part is to remodel the front of said house in accordance with present plans, and party of the second part to pay for
A short time prior to the expiration of the five-year term of the lease, the lessor gave notice to the lessee that she would desire possession of the building at the end of the term, and notified him to vacate; the lessee gave notice to the lessor about the same time that he desired to continue in the building for the additional five-year term according to the provision contained in his lease, and upon the terms and conditions therein contained. After some negotiations for a, friendly settlement of the matter, without avail, each party stood upon their rights under the terms of the lease as construed by them. It was contended by the lessor that she did not desire further to lease the building, but desired to take charge of it herself and use the upper stories for rooming purposes, to prospective tenants, and to conduct some business of her own in the store room on the first floor. It appears that the rental value at the time of the trial had advanced to $200 or $225 per month, quite a difference between that stipulated in the renewal clause. The lessee declined to vacate the premises, and tendered payment of the $125 per month, as required in the renewal clause, which was refused. The action of unlawful detainer followed, with the result above stated. The lessor contended that the renewal clause above set out should.not be effective if perchance she should desire to take the property over and use it herself. The court so construed the clause, and gave a peremptory instruction to find for the plaintiff. The effect of this construction was to write into the renewal clause the words in italics: “second party to pay for any and all repairs made by him, and unless party of the first part desires to use the buildmg at the end of the term, second party to have first privilege of renting said premises for five years longer, ’ ’ etc. The clause was so construed to make it optional upon the part of the lessor as to whether the lessee should have any right to continue in the property. . ■
It is conceded that if the lessor desired to continue the
In Walsh v. Ft. Schuyler Brewing Co. the clause was, “with the first privilege of a renewal of this lease at the end •of said term,” with nothing further in the lease upon the subject of renewal than the language quoted. It did not state for what term, at what rate or manner the renewal was to be effected. The court held that there was something more necessary than a notice by the tenant that he would renew, and desired to continue in the property; and that under the circumstances, some new agreement, acquiesced in
Holloway v. Schmidt decided that the words "first privilege of renewal,” as used in the lease, meant the prior right to a lease of five years upon terms the same as those on which the property had been leased, provided the landlord should give a lease; but this construction was based on extrinsic evidence to the effect that it was understood between the parties at the time the lease was made that the landlord never gave a lease of his property for a term of ten years.
In Schroeder v. Gemeinder, 10 Nev. 355, the lease contained a provision for the purchase of the property, as follows: "the first privilege of buying said premises, at any time they may wish to do so, at the price of one thousand dollars, gold coin.” The lease contained a renewal clause, "with the privilege of two years more,” and lessees continued into the second term by paying rent which was accepted by the lessor. Some time after the second term began the lessees desired to purchase, and tendered the $1,000 purchase price, and .demanded a deed. The lessor refused to accept the money and would not convey. Suit for specific performance was instituted, and relief denied by the lower court. The appellate court reversed the lower court. In construing the clause for option to purchase, the appellate court said if the lessor desired to sell at any time during the term of the lease, it was his duty to first give the lessees privilege of buying,” and if they refused to buy, then he could sell the property to another; on the other hand, until such notice was given it would be at the option of the lessees at any time during the existence of the lease to purchase at the price stipulated, and the lessor was bound to execute the deed upon a tender of the stipulated price. In other words, the lessor was bound to deed the property at the price agreed, even if he did not want to sell.
This case sustains the contention of the lessee in the instant
Construing the lease as a whole, considering all its, parts, together with the meager circumstances surrounding the parties at the time of its execution, as developed on the trial, we have concluded that appellant had an option to lease the property for the second term at the price stipulated, which could not be defeated by appellee’s desire not to rent the property to any person.
It was error to give the peremptory instruction to find for plaintiff; the judgment will be reversed, the verdict set aside, and the case remanded for a new trial.
Reversed and remanded.