Bartel v. Associated Dental Supply Co., 15273

• Citation: 251 P.2d 16,114 Cal.App.2d 750
• Decision Date: 16 December 1952
• Docket Number: No. 15273,15273
• Parties: BARTEL v. ASSOCIATED DENTAL SUPPLY CO.
• Court: California Court of Appeals Court of Appeals

Page 16

251 P.2d 16

114 Cal.App.2d 750

BARTEL v. ASSOCIATED DENTAL SUPPLY CO.

No. 15273.

District Court of Appeal, First District, Division 1, California.

Dec. 16, 1952.

Hearing Denied Feb. 11, 1953.

Alfred S. Hamphreys, Herbert Chamberlin, San Francisco, for appellant.

Marvin Handler, Dana, Bledsoe & Smith, San Francisco, for respondent.

BRAY, Justice.

Defendant appeals from a judgment against it in the sum of $17,650 for rent and attorney's fees under a written lease.

Contentions of The Parties.

No attack is made on the sufficiency of the evidence to support the findings and judgment, if parol evidence was admissible. Plaintiff contended and the trial court found that paragraph 33 of the lease was ambiguous and uncertain, and therefore parol evidence was admissible to show that the parties intended by it that the right of defendant lessee to either cancel or obtain a reduction of rent was conditional as limited in the second part of that paragraph. Defendant contended that the paragraph was neither ambiguous nor uncertain and that it provided that defendant had a right to cancel, with or without cause, or a right to reduced rent if the second part conditions should exist.

The questioned paragraph follows:

'From and after January 1st, 1949, the Lessee is granted the right to cancel this lease upon six months' written notice or at its option shall become entitled to a reduction of rent to be agreed upon mutually between the parties hereto in the event that the business of Lessee has declined to a degree that it would be impossible to pay the rent herein provided, due to any or all of the following causes or reasons; viz.:

'Competition of the Federal, State, or other Governmental authorities in the field of dentistry by health insurance or any other media directly affecting the practice of dentistry or in the event of a material decline in general business conditions or a major national financial or business depression or recession.' (Italics added.)

Generally, the rule is that 'If the language of the instrument is clear and explicit the intention of the parties must be ascertained from the writing alone', and 'Parol evidence is admissible only where the language used is doubtful, uncertain or ambiguous and only then in cases where the doubt appears upon the face of the contract.' Eastern-Columbia v. System Auto Parks, 100 Cal.App.2d 541, 545, 224 P.2d 37, 40. Unless a court can 'to a certainty and with sureness, by a mere reading of the document, determine which is the correct interpretation * * * extrinsic evidence becomes admissible as an aid to interpretation * * *.' MacIntyre v. Angel, 109 Cal.App.2d 425, 429, 240 P.2d 1047, 1050. With this latter rule in mind, let us examine the clause in question. Possibly a cursory reading of it might support defendant's contention that because of the 'or,' the lessee was given an absolute right to cancel while the right to reduced rent was conditional. But a more thoughtful study of it, in view of the other provisions of the lease, particularly the provision for a five-year term (the lease must be construed in its entirety, Cummins v. Bank of America, 17 Cal.2d 846, 849, 112 P.2d 593), prevents one from determining 'to a certainty and with sureness' what is meant. On the very face of it, it does not appear reasonable that parties would contract that after January 1, 1949 (three years after the beginning of the lease) the lessee, with or without reason, could cancel, but his right to an undertermined reduction in rental should be conditional.

The difference of the meaning sought to be given by the parties to the paragraph amounts, in effect, to the question of whether or not there should have been a comma between the words 'notice' and 'or.' That very fact shows the uncertainty of the paragraph's provisions. A matter as important as a lease of business property at $650 per month should not be determined by a court from the writing alone as to whether a comma was intended or not. Such a determination could be only...