Buddenberg v. Welch

Decision Date01 June 1933
Docket NumberNo. 14581.,14581.
Citation97 Ind.App. 87,185 N.E. 865
CourtIndiana Appellate Court


Appeal from Dearborn Circuit Court; William D. Ricketts, Judge.

Ejectment by Ernest Buddenberg against Edith Welch, wherein defendant filed a cross-complaint. From judgment for defendant, plaintiff appeals.

Reversed and remanded, with directions.

McMullen & McMullen, of Aurora, for appellant.

Estal G. Bielby, of Lawrenceburg, for appellee.

SMITH, Judge.

Appellant brought this action against appellee in ejectment upon a complaint in one paragraph to recover possession of certain real estate. The appellee answered in two paragraphs; (1) General denial; (2) an affirmative answer setting up a lease to the premises in question which contained an option to re-lease the same. Appellee also filed a cross-complaint which set up the same matter as the second paragraph of answer; and asked for affirmative relief in that the appellant be required to execute to appellee a renewal lease, and be enjoined from interfering with the rights of appellee in the premises under the original lease.

To the affirmative answer and cross-complaint, appellant filed a demurrer to each which raised the same questions. Both were overruled, and upon appellant refusing to plead further, judgment was rendered in favor of appellee upon her second paragraph of answer and cross-complaint.

The errors relied upon for reversal and properly assigned are: (1) Overruling of appellant's demurrer to second paragraph of answer; (2) overruling of appellant's demurrer to appellee's cross-complaint.

Since the demurrers to the second paragraph of answer and cross-complaint are alike, and raise the same questions, they will be treated together.

The complaint charges that the appellee was in possession of the premises and unlawfully kept the appellant out of same to his damage; that the appellant served a written demand for possession of said real estate upon the appellee more than three months before the expiration of the lease, but that the appellee refused to surrender possession thereof. At the time of bringing the action, there were several defendants, but the cause was dismissed as to all but the appellee.

The second paragraph of answer and the cross-complaint both set up that on the 4th day of September, 1926, one Philip Schuler leased to Leonard James the premises in question, for a filling and automobile service station, for a period of five years from September 1, 1926, a copy of the lease being attached to both pleadings; that the appellant became the owner of the premises by purchase subject to the leasehold rights of the lessee; before the expiration of the lease, the lessee died and one Edith Welch became administratrix of his estate, and through appropriate proceedings in the Dearborn circuit court the rights of the lessee, Leonard James, under the lease, were legally transferred to appellee.

It will not be necessary to set out the entire lease, as the controversy in this case all hinges upon the clause in the lease in which Schuler, the lessor, “in further consideration of such rental payments, now grants unto said James, the first and prior right and option to re-lease said premises for an additional term of five (5) years from the expiration of this lease upon the same terms and conditions set forth and specified.” (Our italics.)

The determination of this cause depends upon the proper construction of this clause in the lease. The appellee contends that this clause in the lease giving to the lessee the first and prior right and option to re-lease said premises for an additional term of five years gives to the lessee the absolute right to re-lease said premises for such additional term. The answer and cross-complaint both allege that the appellee served notice before the expiration of the lease that she intended to exercise this option.

The appellant contends that the words “first and prior” in the lease mean that the lessee was given the right to re-lease the premises ahead of others, provided the appellant did not want the land himself or had decided to re-lease said premises, so the meaning of the words first and prior in connection with the option is the decisive point in the case.

[1][2][3][4] In the case of Blythe et al., Receiver, v. Gibbons, 141 Ind. 332, 344, 35 N. E. 557, 561, the Supreme Court said: “Whether we are considering an agreement between parties, a statute, a constitution, a judgment or order of court, with a view of its interpretation, the thing we are to seek is the thought which it expresses. To ascertain this, the first resort in all cases is the natural signification of the words employed, in the order of grammatical arrangement in which the framers of the writing have placed them. If thus regarded, the words embody a definite meaning, which involves no absurdity, and no contradiction between different parts of the same writing, then that meaning, apparent on the face of the writing, is the one which alone we are at liberty to say was the one intended to be conveyed. In such a case there is no room for construction. That which the words declare as the meaning of the writing is the true one, and neither courts nor legislatures have a right to add to or take away from that meaning.”

[5] Applying this principle of construction, we hold that the words first and prior mean that if the lessor decides to re-lease the premises for a further term, the lessee shall have a first and prior option to re-lease the same. To give this language any other interpretation would do violence to the common rules of construction of written instruments. We cannot say that the parties to this lease put the words “first and prior” into this lease intending that they mean nothing. If the lessor had intended to give the lessee the right at his option to re-lease said premises, he would have positively said...

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4 cases
  • Stein v. Reising
    • United States
    • Missouri Supreme Court
    • October 10, 1949
    ... ... R.I. Realty Co. v. Terrell, 254 ... N.Y. 121, 172 N.E. 262; Cloverdale Co. v ... Littlefield, 240 Mass. 129, 133 N.E. 565; Buddenberg ... v. Welch, 97 Ind.App. 87, 185 N.E. 865; 51 C.J. 631; ... Landowners Co. v. Pendry, 151 Kan. 674, 100 P.2d ... 632; Fergen v. Lyons, 162 Wis ... ...
  • Superior Portland Cement, Inc. v. Pacific Coast Cement Co.
    • United States
    • Washington Supreme Court
    • April 14, 1949
    ... ... v. Littlefield, 240 Mass. 129, 133 ... N.E. 565; R.I. Realty Co. v. Terrell, 254 N.Y. 121, ... 172 N.E. 262; Buddenberg v. Welch, 97 Ind.App. 87, ... 185 N.E. 865; Lewis v. Ludlam, 115 Misc. 347, 189 ... N.Y.S. 636 ... [33 ... Wn.2d ... ...
  • Jenkins v. King
    • United States
    • Indiana Supreme Court
    • February 26, 1946
    ... ... 581, 590, 181 N.E. 507; Higgins v ... St. Joseph Loan & Trust Co., 1933, 98 Ind.App. 674, 678, ... 186 N.E. 910; Buddenberg v. Welch, 1933, 97 Ind.App ... 87, 185 N.E. 865. When taken in connection with the other ... provisions of the contract, and the situation of the ... ...
    • United States
    • New Mexico Supreme Court
    • March 25, 1949
    ...obligations of either party to the other respecting repairs, underletting, and other methods of use or enjoyment?' In Buddenberg v. Welch, 97 Ind.App. 87, 185 N.E. 865, the lease contained the following: 'In further consideration of such rental payments (the lease) now grants unto said Jame......

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