8 Mass. App. Ct. 899 | Mass. App. Ct. | 1979
John J. Duane Realty Corporation (Duane) leased a parcel of real estate to The Great Atlantic & Pacific Tea Company (A & P) for a term of ten years commencing September 1, 1959, with a provision for three five-year extensions at the option of the lessee, two of which had been exercised when this
1. A & P contends that the language "but in no event to exceed $4320 annually” cannot be tortured to mean that its potential additional liability is not more than $4,320 in one year, $8,640 the next, $12,960 the next, and so on to the end of the term. We agree. Compare Great Atl. & Pac. Tea Co. v. Scully, 216 Va. 536 (1976); Bensons Plaza v. Great Atl. & Pac. Tea Co., 44 N.Y.2d 791 (1978). The words are clear and unambiguous, and are to be construed in accordance with their ordinary and usual meaning. Ober v. National Cas. Co., 318 Mass. 27, 30 (1945). Beal v. Stimpson Terminal Co., 1 Mass. App. Ct. 656, 659 (1974). Fried v. Fried, 5 Mass. App. Ct. 660, 663 (1977). "Annually” means “reckoned by the year” (Webster’s Third New Intl. Dictionary 88 [1971]) and was used in the tax clause to distinguish the ceiling on the potential rent increase (which relates to annual taxes) from the "monthly” references earlier in the clause (which refer to rent that is due and payable monthly). Nothing in the tax clause indicates that the increase in taxes is to be based on "the last preceding year,” and clauses which limit the lessee’s exposure to increased payments "in any one year” are distinguishable. Oceantown Realty Corp. v. Great Atl. & Pac. Tea Co., 54 Misc. 2d 502, 503-504 (N.Y. Long Beach City Ct. 1967). Westbury Post Ave. Associates v. Great Atl. & Pac. Tea Co., 46 App. Div. 2d 860 (1974), aff’d 38 N.Y.2d 890 (1976). The language of the lease indicates that in 1959 the parties understood and intended that A & P would pay a certain rental for a ten-year period with three five-year options of extension, that the taxes might increase, that Duane would bear the risk of any tax increase during the initial ten-year term, that A & P would bear the risk of a tax increase during the extension periods, if any, and that A & P’s risk would be limited to a specified amount above the anticipated base of $10,000. In construing the clause to be noncumulative, we have been guided by "[jjustice, common sense and the probable intention of the parties.” Stop & Shop, Inc. v. Ganem, 347 Mass. 697, 701 (1964). That, as a result of this construction, Duane receives less rent than it pays in taxes does
2. The finding that the tax clause was based on a mutual mistake was erroneous. The parties’ assumption as to the anticipated tax increase was necessarily an approximation. "To justify rescission of a contract for a mutual mistake of fact, the mistake must be about a matter of fact, capable of ascertainment, and not a mere expectation.” Cook v. Kelley, 352 Mass. 628, 632 (1967). There is no mistake where, as here, one of the parties is disappointed that its expectation as to future events proved to be erroneous. 13 Williston, Contracts § 1543 (3d ed. 1970). Restatement (Second) of Contracts § 293, Comment (Tent. Draft No. 10, 1975).
The judgment is reversed, and the case is remanded to the Superior Court for the entry of a judgment for declaratory relief not inconsistent with this opinion.
So ordered.