156 Mich. 499 | Mich. | 1909
Lead Opinion
In my opinion the judgment of the circuit court should be affirmed, for the reason that the notice given to the lessees was sufficient to terminate the lease. I do not think that the sufficiency of the notice in question should be determined solely, “upon this point, by what appears in the lease and in the notice and not by evidence aliunde.” The lease does not purport to prescribe the exact terms of the notice, and any form of language which would express the reason for the notice would be sufficient. The object of the notice was not only to express to the lessees the intention of the lessor to terminate the lease and the ground therefor, but also to convey to the minds of the lessees such intention and the basis therefor. Any form of notice which should apprise the lessees that the ground of the notice was the wish to rebuild would be sufficient. In determining the meaning of the notice, therefore, reference may properly he had to the existing facts known to both parties at the time the notice was given. The testimony showed that defendant Lavagnino’s subtenancy was with the consent of Mrs.
“ On and after three years from said August 1, 1904, the said party of the first part shall have the privilege of entering and occupying said premises and terminating said lease, in case she wishes to rebuild upon said premises, upon giving said parties of the second part sixty (60) days’ notice in writing of such intention; but, during the three years comprising the term of this lease, the said party of the first part to have no such right to terminate said lease.”
The provision for notice was a part of the clause giving to the lessees the privilege of a renewal and was a limitation of that privilege. The notice given confirmed the right of the lessees to occupy the premises till the end of the original term and manifestly applied solely to their right to a renewal. The notice conformed to the provision therefor in the length of time given, and, since the lessees could not fail to understand that the provision of the lease
A contrary conclusion was reached in Matter of Coatsworth, 37 App. Div. (N. Y.) 295, cited in the brief for defendants as setting forth “the logic and the law of our contention in this particular.” The lease contained the following language:
“And the said parties of the first part further covenant and agree to and with the party of the second part, his executors, administrators and assigns, that in case they do not give the party of the second part, his executors, administrators or assigns, at least six months’ notice in writing before the 1st day of April, 1862, of their election to take possession of said demised premises at the expiration of this lease and to pay for said buildings, vaults and sidewalks at such appraised value, that then and in that event they will renew and continue this present demise and lease, and such omission to give said notice shall be deemed and taken to be a renewal and continuance of this demise and lease for five years from the said first day of April, 1862, upon the same terms and conditions hereinbefore expressed, except that the rent for said renewed and continued term shall be $700 per annum, payable in the same way as the last five years’ rents above provided for. And they also covenant and agree as aforesaid that so often as they shall fail to give said six months’ notice before the termination of such renewed term, they will renew the said demise and lease, and such failure shall be deemed a renewal thereof for five years from the termination thereof, on the same terms and conditions as the said first renewal and continuance.”
The notice contained the following:
“Sirs: You will take notice that we, as owners of premises, * * * hereby elect to take possession of the said demised premises pursuant to the provisions of*503 said lease, on the 1st day of April, 1897, and hereby notify you that said lease shall terminate on that day.”
The holding of the appellate division was reversed by the court of appeals; the court saying, in part:
“ The only defect claimed in the notice is that it does not contain an express promise to pay for the buildings at their appraised value. The learned appellate division appears to have been of the opinion that the lease prescribed the form of the notice and that the promise to pay was a part thereof. We incline to the view that the wording of the lease does not justify such a conclusion. By it the parties agree that, in case the landlords do not give six months’ notice in writing of their election to take possession of the demised premises at the expiration of the lease and pay for the buildings, vaults, and sidewalks at the appraised value;, they will renew and continue this present demise and lease, etc. This does not purport to prescribe the form of the notice in hsec verba, but only gives the substance. Upon referring to the notice it will be seen that the owners elect to take possession of the premises, ‘pursuant to the provisions of said lease,’ so that if, under the provisions of the lease, they are required to pay for the buildings, they take possession under the promise to pay therefor. It appears to us that this is a substantial compliance with the terms of the lease and answers every requirement of the notice.” Matter of Coatsworth, 160 N. Y. 114.
If it should turn out that the notice was not given in good faith, with an actual intention to rebuild, the rights of defendants will be fully protected under this interpretation of the notice.
The judgment is affirmed.
Dissenting Opinion
(dissenting). The owner of premises leased them for the term of three years from August 1, 1904, for the sum of $2,160, payable at the rate of $60 per month, in advance. The lessees covenanted' that, “ at the end of said term, they shall and will peaceably and
“And the said parties of the second part at the end of the said three years may have the privilege of renewing this lease at ’the same rental for so long a term as said parties of the second part may see fit, upon the same terms and conditions as in this lease contained, with this exception : That on and after three years from said August 1,1904, the said party of the first part shall have the privilege of entering and occupying said premises and terminating said lease, in case she wishes to rebuild upon said premises, upon giving said parties of the second part sixty (60) days’notice in writing of such intention; but, during the three years comprising the term of this lease, the said party of the first part to have no such right to terminate said lease.”
The vendee of the lessor on May 29, 1907, served upon one of the lessees and upon a sublessee a notice, which reads:
“To John Kerreos and Peter Ellis:
“Please take notice that you are hereby required to quit, surrender and deliver up possession to me of the premises hereinafter described, which you now hold of me, as my tenant, on or before the first day of August, A. D. 1907, for the reason that I intend to terminate your tenancy, and to repossess the whole of such premises on the date above mentioned, said premises being described as follows, to wit: The store No. 3C3 Woodward avenue, in the city of Detroit, county of Wayne and State of Michigan. This notice is given in accordance with a provision contained in a certain lease of said premises made and*505 executed by one Elizabeth H. Cady to the said John Kerreos and Peter Ellis.
“H. H. Stender.
“ Dated at Detroit, Wayne county, Michigan, the 29th day of May, A. D. 1907.”
On or about July 27, 1907, the tenants gave the owner the following notice:
“July 27, 1907.
“ Mr. H. H. Stender,
“City.
“Dear Sir: The lease of the store, 308 Woodward avenue, Detroit, Michigan, which we hold, expires on the first day of August next. Under the provisions of said lease we have the privilege of renewing said lease at the same rental for so long a term as we may see fit, upon the same terms and conditions as in said lease contained, and we therefore hereby give you notice that we demand a renewal of the lease, dated the 14th day of September, A. D. 1904, in which Elizabeth H. Cady is mentioned as the party of the first part, for the store known as 303 Woodward avenue, Detroit, Michigan, for the term of fifty years from and after August 1, A. D. 1907, according to the provisions under our present lease. We give this notice to you for the reason that we understand that you have purchased said property from Elizabeth H. Cady, and are now the present owner. You will kindly have a renewal made out for us to sign.
“Yours truly,
“John Kerreos and Peter Ellis.”
The owner, on August 2, 1907, instituted summary proceedings to recover possession of the premises. The plea of the defendants was “not guilty,” and the special defense set up was that the notice to quit was insufficient and void because it did not conform to the notice required to be given by the lease, it did not state that the intention was to rebuild upon the premises, it was prematurely given, and was given by the owner of the property and not by the lessor. Defendants appealed from the judgment of the circuit court commissioner to the circuit court for the county of Wayne, in which court a verdict for the complainant was directed by the court. The evidence
The agreement is that the lessees, if they do whatever is stipulated to be done by them, shall enjoy the premises for a term of three years from August 1, 1904. At the end of this term they may, at their election, enjoy them for a further term, the duration of which they may nominate, paying the rent, and upon the occasions, stipulated in the lease. Fairly interpreted, the provision for a renewal of the lease does not mean that the lessees, upon the expiration of the fixed term, may continue to occupy the premises for an indefinite period, or at their will. Nor is it to be supposed that the parties to the lease contemplated that the tenants should relinquish possession at the end of the three years, take a new lease and immediately re-enter. The intention of the contracting parties, gathered from the whole instrument, is to make a present agreement for an additional or further term to begin in the future, requiring only lapse of the preceding term and the election of the lessees to become a lease in prsesenti. There is no rule which requires courts, notwithstanding the evident intention of parties, expressed in fitting terms, to construe a clause such as is in question here as a mere covenant for a lease or for the renewal of a lease. No one would doubt that, if the duration of the second or fur
Assuming, as we must, that the property is demised by the written lease for a term and for a further term, is the contract legally infirm ? If there is an infirmity, it must arise out of the fact that the duration of the term was, when the contract was entered into, uncertain. For that matter, it was uncertain whether there would be a second term. So in Brand v. Frumveller, supra, and in Brush v. Beecher, 110 Mich. 597, it was uncertain what rent would be demanded during the second term. In those cases the amount of the rent was to be determined by arbitrators, to be chosen by the parties. There was a mutual undertaking to make the uncertainty certain if a further term was entered upon by a designated method. It was not supposed that the uncertainty avoided the contract. Here the commencement of the second or further term is made certain by the lease. It is the demise of the owner who is content that his lessees shall make the duration of the term certain. * There is no want of mutuality. Fairly construed, the contract is that, when the election to hold for a further term is made, which must be before or immediately upon the termination of the three years’ term, there must be also a fixing of the duration of the term to be made known to the lessor. The owner so understood it, as is evidenced by the notice which he served. The lessees so understood the meaning and acted in con-
It is contended that the notice given by the owner to the tenants is ineffectual to determine the lessees’ right to possession because: First, it does not state that it is the intention of the owner to rebuild; second, it was prematurely given; third, by the terms of the contract the right to make the election belonged to the lessor only. The objection last stated will be first considered. The privilege of re-entry is not in terms reserved to the assignee of the lessor. The renewal clause is an entirety. Assuming that the lessees have done precisely what is required to secure a further term, they have done it pursuant to and by force of the stipulation in the lease which also permits the re-entry of the lessor. The estate created was as to the added term one upon condition. Shaw v.
Whether the notice was prematurely given, and whether it was a sufficient notice, are questions which may properly he considered together. Assuming that the demise was for a term of three years, and, at the election of the lessees, for a further term, then, if the reason for 'terminating the tenancy was a desire to rebuild the premises, the notice to quit was not premature. The lease does not specify that the notice can be given only after the expiration of three years. On the contrary, it specifies that “on and after three years from said August 1, 1904, the said party of the first part shall have the privilege of entering and occupying said premises and terminating said lease.” Notice of an intention to re-enter at the expiration of three years is as much required, and is as much for the benefit of the lessees if they proposed to remain for an additional term, as is notice of an intention to re-enter at a later time. It is contended that the notice specifies that the owner desired to rebuild because it contains the words:
“This notice is given in accordance with a provision ■contained in a certain lease of said premises made and executed,” etc.
If we direct attention entirely to the stipulation referred to, it is clear, I think, that it refers, not to notice of an intention to re-enter alone, but to notice of an intention to rebuild. “Wishes to rebuild ” is, in this lease, equivalent in meaning to “intends to rebuild;” but the sufficiency of
