258 Pa. 299 | Pa. | 1917
Opinion by
This is an appeal from a judgment entered- upon a case stated, in an action of ejectment, in which Edward J. Stetler, is plaintiff and the North Branch Transit Company and A. W. Duy, receiver of the North Branch Transit Company, are defendants. From the case stated, it appears that the transit company, as successor to the lessee, was in possession of a tract of land in Center Township, Columbia County, known as “Columbia Park.” The lease-contemplated the use and improvement of the land as a place of entertainment and amusement for the public, and it contained the following clause: “It is further agreed and understood that if at the expiration of this lease the party of the second part, its successors and assigns shall desire to re-lease the said premises for a further period of ten years it or they shall have the first privilege of re-leasing the same at the rental and upon the terms herein contained.”
The controversy turns upon the construction to be given to the words “first privilege” in the above clause. Counsel for plaintiff contends the words mean that at the end of the ten-year term, the lessee has nothing more than the first right to re-lease the premises for another term, provided the lessor was willing at that time to lease to any one. The court below, however, held that it
A case involving the same question was before the Superior Court in McDonald v. Karpeles, 61 Pa. Superior Ct. 496. The lease there under construction was for a term of two years and provided that the lessee should have “the first privilege to rent the building for a further term of three years.” It was held that the lessee was entitled to remain in possession, under the same terms and conditions, for the additional three years, if he so desired and gave due notice of his intention. Henderson, J., said (p. 498) : “The use of the word ‘first’ does not, we think, change the significance of the option. If the word were omitted, it is necessarily implied that the tenant was to have the first privilege allowed by the clause in the lease, that is, he had the option to the exclusion of everybody else to rent the building for the further term of three years. It will be observed, too, that by the proviso he is to exercise the privilege three months before the expiration of two years. What privilege was he to exercise? Certainly the right to the extended term. This could hardly be called a privilege to be exercised if it were at the option of the landlord to increase the rent to an amount which would be prohibitive to the tenant.”
In the case at bar, every contingency was provided for, in the event that the lessee should desire an extension of the lease. The length of the additional term was fixed, and the amount of the rental and the other conditions were to be the same as during the first period.
We agree with the conclusion reached by the court below that the lessee had the right to re-lease the premises for a second term of ten years, and that it exercised its right after giving to the owner of the land reasonable notice of its desire to do so. Having complied with the