Central New Haven Development Corp. v. La Crepe, Inc.

• Decision Date: 03 April 1979
• Citation: 413 A.2d 840,177 Conn. 212
• Court: Connecticut Supreme Court
• Parties: CENTRAL NEW HAVEN DEVELOPMENT CORPORATION v. La CREPE, INC.

Page 840

413 A.2d 840

177 Conn. 212

CENTRAL NEW HAVEN DEVELOPMENT CORPORATION v. La CREPE, INC.

Supreme Court of Connecticut.

Argued Dec. 12, 1978.

Decided April 3, 1979.

Peter M. Ryan, Darien, for appellant (defendant).

Roger J. Frechette, New Haven, for appellee (plaintiff).

Before COTTER, C. J., and LOISELLE, BOGDANSKI, LONGO and PETERS, JJ.

LOISELLE, Associate Justice.

The plaintiff landlord brought this action for damages for breach of a lease by the defendant tenant. The issues were found for the plaintiff and damages were awarded. The defendant has appealed.

The facts in this case were not in serious dispute. On or about December 7, 1966, the plaintiff and defendant entered into a written lease for space in Chapel Square in New Haven for a term of twenty years. The lease was amended on June 17, 1967, and again on August 24, 1967.

The lease provided: "Landlord agrees to use its best efforts to procure and deliver to Tenant an agreement in writing, from any such present or future ground Lessor and/or any such present or future mortgagee, providing in substance, that so long as Tenant shall faithfully discharge the obligations on its part to be kept and performed under the terms of this lease, its tenancy will not be disturbed nor this lease be affected by any default on the part of the Landlord under any such present or future ground lease or present or future mortgage, and/or extensions, modifications, removals, replacements and amendments with respect to such ground lease or mortgage. The instruments thereto shall be delivered by Landlord to Tenant within sixty (60) days after the execution of this Lease and if Landlord fails to deliver such instruments within said period of time, Tenant may cancel this lease." The amendment to the lease on June 17, 1967, changed the last sentence of the above quoted portion of the lease to read: "The instruments thereto shall be delivered by Landlord to Tenant within sixty (60) days after the execution of this Amendment to the Lease and if Landlord fails to deliver such instruments within said period of time, Tenant may cancel this lease."

On May 11, 1970, the defendant wrote to the plaintiff and requested the plaintiff to obtain such a nondisturbance agreement. The plaintiff then contacted the mortgagee who refused to provide it. The defendant vacated the premises September 30, 1970. The leased premises were vacant from September 30, 1970, to June 1, 1971, when they were leased for a rental amount of less than that in the lease between the plaintiff and the defendant.

The trial court interpreted the lease provision as only requiring the plaintiff to use its best efforts to procure the nondisturbance agreement from the mortgagee. It found that the plaintiff did use its best efforts to procure the agreement and that the defendant was in breach, and awarded damages.

"A lease is a contract. Cohn v. Fennelly, 138 Conn. 474, 476, 86 A.2d 183. In construing it, three elementary principles must be kept constantly in mind: (1) The intention of the parties is controlling and must be gathered from the language of the lease in the light of the circumstances surrounding the parties at the execution of the instrument; (2) the language must be given its ordinary meaning unless a technical or special meaning is clearly intended; (3) the lease must be construed as a whole and in such a manner as to give effect to every provision, if reasonably possible. Perkins v. Eagle Lock Co., 118 Conn. 658, 663, 174 A. 77." Ingalls v. Roger Smith Hotels Corporation, 143 Conn. 1, 6, 118 A.2d 463, 465 (1955); Lonergan v. Connecticut Food Store, Inc., 168 Conn. 122, 128, 357 A.2d 910 (1975); Collins v. Sears, Roebuck & Co., 164 Conn. 369, 373-74, 321 A.2d 444 (1973); Perruccio v. Allen, 156 Conn. 282, 285, 240 A.2d 912 (1968). The language in the lease in this case and in the provision relating to the obtaining of the agreement in question is plain and unambiguous. Therefore, it is not subject to interpretation or construction. Collins v. Sears, Roebuck & Co., supra, 373, 321 A.2d 444; 17 Am.Jur.2d, Contracts, § 241. The plain meaning of the provision in question is that within sixty days of the signing of the amendment to the lease on June 17, 1967, the plaintiff was to use its best efforts to procure a subrogation agreement from the mortgagee for the benefit of the defendant lessee and if one was not procured within sixty days of June 17, 1967, then the lessee would have the right to cancel the lease. Therefore, the court was in error in concluding that the defendant did not have the right to cancel its lease as long as the plaintiff did use its best efforts to procure an agreement from the mortgagee that the defendant's lease would not be disturbed by the default of the landlord. On August 16, 1967, the plaintiff had not secured the required agreement so the defendant lessee had the right to cancel the lease.

The lease does not provide any special time within which the lessee must exercise its right to cancel the lease once it has accrued. The defendant claimed that its right would extend for the remainder of the twenty-year lease period, once there was a breach of the condition.

When a lease, or any contract, is silent as to the time when an option to cancel on a contingency must be exercised, it must be exercised at the time the contingency occurs or within a reasonable time thereafter. Citizens Bank Bldg. v. L. & E. Wertheimer, Inc., 126 Ark. 38, 189 S.W. 361 (1916); Alpern v. Mayfair Markets, 118 Cal.App.2d 541, 258 P.2d 7 (1953); Pacific Warehouse Co. v. McKenzie-Hunt Paper Co., 80 Wash. 489, 141 P. 1147 (1914); 49 Am.Jur.2d, Landlord and Tenant § 1002; annot., 37 A.L.R.2d 1173, 1174. In the instant situation, the option was not exercised until September 30, 1970, more than three years after the failure of the condition upon which the option to...