23 Haw. 307 | Haw. | 1916
Lead Opinion
OPINION OP THE COURT BY
This is a suit to compel specific performance of a covenant contained in a lease for its renewal. The respondent appeals from a decree entered in the court below granting the relief prayed for.
It is contended that the court erred in refusing to allow
It is contended that as the complainant neglected to exercise the renewal option at or before the expiration of the original term he is not entitled to have specific performance of the covenant. The term expired on June 1, 1914. There was evidence showing that on June 2, the complainant gave one Ah Chip one hundred and thirty-two and a half dollars to be remitted to the respondent for the half-year’s rent, but it was not until the 10th of June that the money was sent by post-office money orders. On June 6 the complainant received from Ahulii a letter dated June 1, in which the writer stated that the lease had expired, offered to give Yip Lan a new lease at an annual rental of three hundred dollars, asking him to “come at once” if he was agreeable to the new terms, and saying “I will wait for you for one week only.” The complainant seems not to have replied to the letter, but' he went personally over to Kaupo, arriving at Ahulii’s place on June 15. Ahulii and his wife being present, the complainant requested a renewal of the lease. Ahulii replied that it was too late, and that one Fat On, who also was there, had offered three hundred dollars a year. At that time the rent which Yip Lan had remitted had not been received, but, upon being shown the post-office receipts, Ahulii went over to the post-office and got the orders, apparently on the next day. He retained the money and sent Yip Lan a receipt for it. Yip Lan returned
“Kaupo, June 19, 1914.
“By this I hereby grant permission to Yip Lan, from this day to the 1st. day of Jan. A. D. 1915, to take his things and leave everything appertaining to the land of Mrs. Inoaole Ahulii Jr. for myself.
“Yours truly,
“Fat On
“Per Geo. J. Kunukau
“Kaupo, June 19, 1914..
“Received by me two hundred dollars ($200) from Joseph Ahulii Jr. for this six months, beginning from June 1, 1914, to Jan 1, 1915.
“Fat On.”
There is no evidence that the complainant paid the sixty-seven and a half dollars or otherwise acceded to the arrangement made between the Ahuliis and Fat On. On November
A covenant in a lease for its renewal is a valid agreement of which equity may compel specific performance at the suit of the lessee. A covenant to renew, as distinguished from a privilege to extend, a lease gives the lessee an option which he must ordinarily act upon by giving notice of his intent to renew at or before the end of the term demised. But time is not of the essence of the agreement, unless made so, and the notice, being for the benefit of the lessor, may be waived by him. In the lease under consideration there was no express requirement that the lessee should give notice at or within a specified time. Time was not of the essence of the agreement. By his letter of June 1 the lessor notified the lessee to signify his desire within a week of that date. The lessee, however, remained in possession, forwarded six months’ rent, and on the 15th of June personally notified the lessor that he desired the renewal. Up to that time the lessor had not altered her position, and there was nothing to prevent her from complying with her agreement. The option was exercised within a reasonable time, both parties were bound by it, and the lessee became entitled to have the lease renewed on the terms agreed upon. Caley v. Thornquist, 89 Minn. 348; Chittenden v. Western Union Tel. Co., 154 Mich. 1; McBrier v. Marshall, 126 Pa. St. 390; Holton v. Andrews, 151 N. C. 340; Gerhart Realty Co. v. Brecht, 109 Mo. App. 25; Myers v. Silljacks, 58 Md. 319, 331.
The lessee had paid the rental for the first six months of the new term, and, by accepting it, the lessor waived the
The contention of the appellant that the decree requiring the execution of a lease to the complainant would be nugatory since Fat On who holds a lease of the premises from the respondent has not been made a party to this suit is well taken. The record shows, moreover, that Fat On has executed certain sub-leases to others, who, presumably, are now in possession of the land, but have not been made parties. “Persons who, after the making of a contract for the conveyance of lands, acquire interest in the lands derived from the vendor, are necessary párties to a bill for the specific performance of the contract.” 20 Enc. Pl. & Pr. 415. See also Pomeroy on Contracts (2nd ed.) Sec. 493; 36 Cyc. 761. The decree in this case, in order to be effective, should extinguish the legal rights in the land of Fat On and his sub-lessees. In case of the non-joinder of an indispensable party “the appellate court may, in its discretion, if it cannot make a decree which will finally and properly dispose of the subject-matter of the controversy in the absence of a party, remit the cause for the purpose of
The decree is reversed and the case remanded to the circuit judge for further proceedings consistent with this opinion.
Concurrence Opinion
CONCURRING OPINION OF
I concur in the conclusion that the judgment must be reversed on the ground stated in the opinion of the court. However, I am of the opinion that the complainant’s bill should be dismissed for want of equity, in that it appears in the record and by evidence offered on behalf of the respondent, and refused by the court, that the covenant sought to be specifically performed was waived by the complainant and abandoned by mutual consent of both parties. Failure to perform the covenant, if excused by both parties, will defeat a suit for specific performance. 36 Cyc. 699, 700, and authorities cited in notes. “The right to enforce an agreement in equity is lost when the party seeking performance has consented to a rescission of the contract.” 26 Am. & Eng. Ency. L. 134, and authorities cited in notes; When the contract has been abandoned by the party seeking-specific performance, or by both parties, specific performance will not be decreed. 26 Am. & Eng. Ency. L. 135, and authorities cited in notes.
The history of the abandonment or waiver suggested, contained in the record, is as follows: June 1, 1914, at the expiration of the option to release contained in the old lease, respondent’s husband, J. Ahulii, acting for respondent, wrote to the complainant informing him, in substance, that the lease had expired, and offering to give him a new lease at the increased rental of $300 per year, the complain
I do not think that Ahulii acted properly in regard to making an arrangement for Yip Lan with Fat On, but he evidently did it through kindness of heart and to prevent Yip Lan from losing his growing crops and to give him the opportunity to mature and harvest them. Yip Lan should have returned the Fat On receipt unless he claimed an advantage under it. Under the circumstances I regard it as clear, from the evidence in this case, that Yip Lan abandoned the covenant in the lease for renewal on the terms stated in the old lease, was willing to take a new lease on different terms, and, after he found that Fat On would pro