Woods v. Postal Telegraph-Cable Co., 87 So. 681

Woods v. Postal Telegraph-Cable Co.

87 So. 681

Ala.

1920

Check Treatment

Lead Opinion

SOMERVILLE, J.

[1] Thе questions of controlling importance in the trial of the cause in the court below turned upon the interpretation and construction of that provision of the lease contract which authorized the lessor to terminate the lease upon four months’ notice to the lessee in case she desired to improve the premises.

As an abstract proposition, to “desire” means ordinarily to wish for more or less earnestly; but, according to context or circumstances, the expression of a desire may import a request or even a demand. One may feel a desire without the remotest intention of seeking its attainment, and, indeed, attainment may be consciously impossible; but the desire may nevertheless be present.

It is, we think, entirely clear that the parties to this contract did not use the word “desire” in that general sense. As stated by this court in Birmingham Water Works Co. v. Windham, 190 Ala. 634, 637, 67 South. 424, 425:

“Contracting parties usually engage upon rational considerations and to reasonable effects and ends; and, when the courts find it necessary to construe instruments of obligation, it is ever proper, and often essential, for them to assume, at least prima facie, that the unrеasonable and irrational was not the contractual intent.”

So, also, a contract will not be construed so as to render it oppressive or inequitable as to either party, or so as to place one of the parties at the mercy of the other, unless it is clear that such was their intention at the time the agreement was made; and “all words, whether they he in deeds, or stаtutes, or otherwise, if they be general, and not express and precise, shall be restrained unto the fitness of the matter and person.” L. C. Coal Co. v. Ætna Life Ins. Co., 192 Ala. 42, 68 South. 317, Ann. Cas. 1917D, 863. And, when the language of a contract will, with equal reason, bear more than one interpretation, courts are inclined to give to it that meaning which is unfavorable to the party who has used or drafted the language. Denson v. Cаddell, 201 Ala. 194, 77 South. 720; 16 R. C. L. 699, § 188.

Manifestly, the .provision looking to the cancellation of this lease contemplated something more than a vagrant or ephemeral wish to improve the building. In reason and fairness it must have meant a desire accompanied by a definite intention of execution and attainment — action, in short, which would lead to practical results. And, while the expression of such a dеsire in the appointed way may be prima facie evidence of its existence, yet it is the actual existence of the desire, and not its expression merely, which must furnish the basis and justification for the cancellation of the lease. Worthington v. Gwin, 119 Ala. 44, 55, 24 South. 739, 43 L. R. A. 382, citing Electric Lighting Co. v. Eider Bros., 115 Ala. 138, 21 South. 983; Jones v. Lanier, 198 Ala. 363, 365, 73 South. 535. Those cases, it is true, deal with the mental state or conclusion of dissatisfaction with goods supplied or labоr done; but the principle is in no wise different. In all such cases the desire must exist and the decision must be made in good faith; that is, actually and without dissimulation. Jones v. Lanier, 198 Ala. 363, 365, 73 South. 535; Nicolopole v. Love, 39 App. D. C. 343, 47 L. R. A. (N. S.) 949, and note, citing and reviewing the strongly analogous cases of Russell v. Collins, 8 Vesey, Jr., 34: Donohue v. New York, 54 Misc. Rep. 415, 105 N. Y. Supp. 1069, Hodgkins v. Price, 137 Mass. 13, and Muzzy v. Allen, 25 N. J. Law, 471 — all of which relate to ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍the cancellation of a lease upon-some action by the lessor.

According to Worcester’s Unabridged Dictionary, “to improve,” in its general and ordinary use, is simply to make better, to meliorate, to mend. When we speak of improving a building, we generally mean making it better; that is, more valuable or more convenient for use. Speaking of our statute *241 giving a lien to mechanics and materialmen, this court has said:

“The terms ‘building or improvеment,’ as here used, are not necessarily synonymous, and have a different signification from ‘repairs thereto,’ although repairs ordinarily may be an improvement. * * ' An improvement -may be an independent structure or addition, and it may be an addition to or mere betterment of a building or improvement already made. * * * Wimberly v. Mayberry, 94 Ala. 240, 243, 10 South. 157, 158 (14 L. R A. 305).

See, also, Bates v. Harte, 124 Ala. 427, 26 South. 898, 82 Am. St. Rep. 186.

In Parker v. Wulstein, 48 N. J. Eq. 94, 21 Atl. 623, it was said that “improvements,” as used in a lease which provided that all imрrovements of the building shall belong to the landlord at the expiration of the term, may be said to “comprehend everything that tends to add to the value or convenience of a building or a place of business, whether it be a store, manufacturing establishment, warehouse, or farming premises. It certainly includes repairs of every description. It necessarily includes much more than the tеrm ‘fixtures.’ ” And to the same effect are French v. Mayor of N. Y., 16 How. Prac. (N. Y.) 220, 222; Ames v. Trenton Brewing Co., 56 N. J. Eq. 309, 38 Atl. 858; and many other authorities. 2 Tayl. Landlord and Tenant (8th Ed.) p. 119 ; 16 A. & E. Enc. Law (2d Ed.) 58; 4 Words and Phrases, 3454. Of course, the word “improve” has no fixed meaning in law, and its significance and application will be determined in each case by the relation of the parties to be affected, and the object to be accomplished by the statute or contract in which the word is used.

Keeping these factors in mind, we think it is clear that the “improvement” contemplated by the parties to this contract was something substantial in its character, as distinguished from that which is petty or minute; and permanent in its use and value, as distinguished from that which is ephemeral or subject to easy and frequent change.

The case of St. Andrews Church’s Appeal, 67 Pa. 512, 519, is strongly in point. The court was thеre construing a covenant restricting the uses of certain lots of land, and it was said, per Sharswood, J.:

“It may be well to remark at the outset that according to the express terms of the instrument in which the covenant is comprehended, the restrictions were only to cease ‘whenever either of the said lots of ground shall be improved by buildings, which shall be built in accordance with the spirit of this аgreement.’ The spirit of the agreement evidently contemplated the improvement of the ground by the erection of permanent buildings. That is the popular and ordinary sense of the word ‘improved.’ It does not refer to mere temporary structures, intended only to answer the purposes of present use, however long that use might continue. We can easily understand the differencе, without perhaps being able to draw an exact line. Every case must depend upon its own circumstances.”

So, in Bates v. Harte, 124 Ala. 427, 26 South. 898, 82 Am. St. Rep. 186, supra, it was held:

“That a well designed and made for a permanent supply of water' is an improvement upon land within the meaning of the statute referred to” — Code 1896, § 2723. (Italics supplied.)

It may be that under the circumstances of this case, and under the principles of construction above noted, the improvement intended by the parties should рroperly be held to be nothing iess than such a rehabilitation or reconstruction ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍of the building as would- in physical extent require the vacation of the building, and in value be substantially inconsistent with the rent reserved. But the exigencies of the case do not require a ruling upon that proposition.

It is, we think, quite clear that the making of minor improvements not affecting substantially the structure of the building, or its use, or its rental value, were not contemplated by the parties as the contingency which would lead to the extinction of defendant’s term, and the expulsion of defendant from the premises. Hence mere rearrangements or readjustments of windows or doors to suit the temporary needs or convenience of changing tenants, to be made at a comparatively insignificant сost, would not be an improvement within the meaning of the contract.

The several instructions given to the jury are in harmony with the views above expressed, and the 'issues of fact embraced therein were properly submitted to the jury under the evidence before the court.

[2] Charge 6 does not misplace the burden of proof. Plaintiff was bound to show the existence of a bona fide, i. e., a real, actual, desire on her part to improve the building. Although such a contractual provision does not expressly stipulate for good faith, yet good faith is always intended, and is as necessary in the proof as if it were expressed in the contract itself. El. Lighting Co. v. Eider Bros., 115 Ala. 138, 153, 21 South. 983. It is true that good faith may often be presumed from the facts, but that is quite apart from and does not change the рrimary burden of proof.

[3] Charge 10 was not erroneous by reason of its allusion to the customary practice of rearranging storerooms in a minor way to meet the wishes of new tenants. The evidence showed without dispute that store fronts were usually changed to suit new tenants, especially those going into a new line of business; and tbe word ‘‘customary” was *242 plainly used as a synonym for “usual,”- and not in the sense of a fixed custom by which any one was to be bound. Moreover, mere minor rearrangements to meet the wishes of the new tenant Bromberg, and not resting upon a primary and independent desire on the part of plaintiff, would not have met the requirement, whether such changes were customary or not.

[4] -Charges A and B, refused to plaintiff, asserted that, with respect to plaintiff's right to improve the building, her motive could not be inquired into.

If one has a legal right to do an act, it is true that a bad motive does not render the act wrongful; and, so far as the rightfulness or wrongfulness of the act is concerned, motive is immaterial and will not be inquired into. But upon the question of the existence of the right as a matter of fact, depending as it did upon the existence of a bona fide desire tо improve the building — as to which the testimony and its inferential tendencies were in sharp conflict — the question of motive was material, and was a legitimate subject of inquiry and consideration. As framed, these charges were erroneous and properly refused.

[5] The fact that defendant’s local manager went to Willett, after the service of the notice to vacate, to see if they could find a place.to move to, was not material to any issue before the jury; nor did it appear that the agent was authorized by defendant to act for it in that regard. For either reason, evidence of that fact was properly excluded.

[6] The witness Willett having testified that the Anniston Optical Company, who went into possession of the building after its vacation by defendant, had dоne very little in the way of improvements, it was not error to allow -defendant on cross-examination to ask him what -they did. Nor, in any case, could the answer have been prejudicial to plaintiff.

[7, 8] The question to the witness Willett as to what amount of salvage (?) there would have been to Bromberg if he had gone into the building and put in a front, and afterwards defendant had re-entered for another tеrm and changed ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍it back, was irrelevant and should have been excluded. But so far as the answer could have -any weight or value, it was undoubtedly favorable to plaintiff, and its admission cannot support a finding of prejudicial error.

[9,10] The testimony of the witness Goodwin that in a majority of instances, as a rule, they change the fronts of the houses, in the territory where this building was, when they change the tenants, wаs not competent for the purpose of changing the terms of any lease contract between plaintiff and Bromberg, and it was manifestly not offered for that purpose. It was, however, competent for the purpose of explaining the meaning and scope of the term “improve” as used in defendant’s lease. However, Goodwin’s statement was merely cumulative of what had already been stated by Willett, on his cross-examination, and certainly added no prejudicial weight thereto. Moreover, the objection to the testimony was general merely, and therefore insufficient for the exclusion of relevant matter, though it may have been otherwise objectionable. Its use and effect could have been limited by appropriate instruction to the jury.

[11] On the former trial of the case in the inferior court, defendant’s witness Bromberg had testified, and his testimony was taken down by a stenographer who made a transcript thereof. Plaintiff asked the presiding judge Leyden if that testimony, as read by him several days later, was in there substantially as Bromberg delivered it on the stand. Objection to this being sustained, plaintiff offered to prove by Judge Leyden that said report was substantially correct, and offered the report in connection with Leyden’s testimony. Objection to this was also sustained.

[12] The stenographer’s report of Bromberg’s testimony was but hearsay, and was not admissible in evidence. The questions to the witness Leyden called for merely an affirmation that the stenographer’s statement was correct — a form of double hearsay. It was competent for any witness who heard Bromberg’s former testimony to state what it was, but only such portions of it were here admissible as tended to contradict his present testimony. After the adverse rulings referred to, plaintiff was allowed, without objection, to bring out from the witness a number of such contradictory statements, which was all that he was entitled to do, and no prejudice is apparent.

[13] In the stаte of the evidence, as shown by the bill of exceptions, we cannot reverse the action of the trial judge in overruling plaintiff’s motion for a new trial. The evidence is conflicting on several vital issues, and, whatever the real truth may be, its ascertainment was for the jury, and their verdict is sufficiently supported by the evidence.

Finding no prejudicial error in the record, the judgment will be affirmed.

Affirmed.

ANDERSON, O. J., and McOLELLAN and THOMAS, JJ., concur.

Addendum

On Rehearing.

SOMERVILLE, J.

[14] In defining thе meaning of the word “desire,” as we conceive it to have been used in the lease-contract here involved, we have said:

*243 “In reason, and fairness it must have meant a desire accompanied by a definite intention of execution and attainment — action, in short, which would lead to practical results.”

We think that counsel has misunderstood the meaning of the latter phrase, which is due perhaps to an ellipsis in its structure. We did not mean to say that any action must be actually taken in order to establish a desire to improve, but only that there must be a definite intention to proceed to action in due course.

Thus understood, there is nothing in our definition of the word, or in our construction of the contract, which is not in harmony with the case of Gunsenhiser v. Binder, 206 Mass. 434, 92 N. E. 705, which is cited by cоunsel as a “gray horse case” in contradiction of our rulings.

In the Gunsenhiser Case, the' lease-contract was, indeed, substantially like the one before us, except ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍that its termination was to be based upon a desire “to sell” instead of “to improve.” The court said:

“In order to constitute a desire to sell or convey, within the meaning of the language of the lease, it was not necеssary that the plaintiff [lessor] should enter into a binding agreement to convey. Nor was an entry upon the land by the plaintiff necessary.”

So, in the instant case, it was clearly not necessary, to the establishment of plaintiff’s “desire to improve,” that she should enter upon the premises, or make any binding contract to improve them. But if she made a lease of the premises, contemporaneously with the expression of her desire to improve, by the terms of which he disclaimed any obligation or purpose to improve, and, indeed, disabled herself from doing so (as to which the affirmative evidence is without dispute), and left the whole matter of repairs to the judgment and discretion of her intended tenant, Bromberg (as to which the evidence is in dispute), this was an unequivocal negation of the existence of any intention on her part to improve, and nullified the prima fade probative value of her declaration made to defendant. There is serious error in the assumption that Bromberg’s independent desire to improve for his own convenience could supply the want of any desire or intention to improve on the part of plaintiff. Nor would plaintiff’s dеsire to have Bromberg make some improvements for himself, merely in order to supply the required ground for terminating the lease, measure up to the requirements of the stipulation.

If, on the contrary, Bromberg was obligated by plaintiff to make substantial improvements her action was in harmony with, and not in contradiction of, her previously expressed desire and purpose.

Charges 10 and 11 properly presented this view of the law to the jury in relation to the evidence before the court.

Obviously enough plaintiff’s desire to improve was not, as an abstract proposition, limited to improvements to be made through the agency of Bromberg, or of any prospective tenant. But, under the circumstances shown, having expressly disclaimed any desire or purpose to imprоve by her own action, or for her own purposes, and having leased the premises to Bromberg with no apparent reservation of the right to enter and make improvements — her own desire to improve, if any she had, could be exhibited and established only by her imposition of a compulsory duty upon Bromberg to make for her the improvements she actually desired and actually intendеd to make.

[15] Charge 11 given at the instance of defendant and already referred to in connection with charge 10, is in the following language:

“The court charges the jury that if Bromberg simply told plaintiff’s agent that he expected to change the front and do other work on the premises, but it was no part of the agreement between plaintiff and defendant that Bromberg obligated himself to do so, then plaintiff cannot recover.”

The use of the word “defendant” in this charge in lieu of “Bromberg” is obviously a mere slip of the draftsman’s pen — an error which, in view of the context, and of the whole tenor of the other instructions, general and special, must be regarded as self-correcting and incapable of being misunderstood by the jury. As stated by counsel in brief, in urging this verbal error as a ground for сondemning the charge and working a reversal of the judgment, “there was not even a claim or a contention that any agreement or contract between plaintiff and defendant obligated or attempted to obligate Bromberg to improve the premises.” In short, the use of any other word than “Bromberg” in that'connection was without sense or meaning. A conclusive argument that the еrror was in fact corrected, and the right word sufficiently indicated, by the context itself, may be found in the fact that the astute and experienced counsel who represented the plaintiff at the trial and on appeal never observed the inaccuracy complained of until the affirmance of the judgment by this court — a statement which we venture to make in view of the fact thаt it is now for the first time brought to our attention on this application for a rehearing. This view of the matter is perhaps strengthened by the further consideration that we ourselves failed to notice the defect in spite of repeated inspection and consideration of the language of the charge.

Similar slips of speech in instructions to juries have often been held harmless whеre *244 the true sense was manifest, even though the substituted word, standing alone, would mean exactly the opposite of the word intended. South. Bell Tel. Co. v. Jordan, 87 Ga. 69, 13 S. E. 202; Anderson v. Anderson, 128 Ind. 254, 27 N. E. 724; In re Spencer 96 Cal. 448, 31 Pac. 453; Citizens’, etc., Co. v. O’Brien, 118 Ill. 174, 8 N. E. 310; O’Connor v. Langdon, 3 Idaho, 61, 26 Pac. 659; Shipley v. Reasoner, 87 Iowa, 555, 54 N. W. 470; and many other cases.

A review of the record, and a thorough consideration of the arguments of counsel, have not led us to doubt ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍the correctness of our original conclusions, and the application for rehearing will therefore be denied.