Chick v. Macbain

Decision Date17 September 1931
Citation157 Va. 60
PartiesE. R. CHICK AND W. S. CALHOUN v. GEORGE MACBAIN, JR.
CourtVirginia Supreme Court

Present, Prentis, C.J., and Campbell, Holt, Hudgins and Gregory, JJ.

1. EQUITY — Demurrer. — The legal effect of a demurrer to a bill in equity is to admit the facts but not the conclusions of law stated in the bill.

2. JUDGMENTS AND DECREES — Declaratory Judgments — When Declaratory Judgment will be Entered — Sections 6140a-6140h, Code of 1930 — Adverse Interests. The act providing for declaratory judgments, sections 6140a-6140h, Code of 1930, contemplates that the parties to the proceeding shall be adversely interested in the matter as to which the declaratory judgment is sought and their relation thereto such that a judgment or decree will operate as res adjudicata as to them. It authorizes the entry of such judgment before the right is violated, and even though no consequential relief is or could be asked for or granted. It does not, however, confer upon the courts the power to render judicial decisions which are advisory only.

3. JUDGMENTS AND DECREES — Declaratory Judgments — Sections 6140a-6140h, Code of 1930 — Actual Controversy — Test of Applicability of Statute. — The test of the applicability of the statute (sections 6140a-6140h, Code of 1930) is the determination of the existence of an actual controversy. The manifest intention of the legislature was to provide for a speedy determination of actual controversies between citizens, and to prune, as far as is consonant with right and justice, the dead wood attached to the common law rule of "injury before action" and a multitude of suits to establish a single right.

4. JUDGMENTS AND DECREES — Declaratory Judgments — Where Complainant Has Other Remedy. — The fact that a plaintiff or complainant might, by the institution of an action or suit or series of actions or suits, eventually, through protracted and continuous litigation, have determined the same questions that may be determined once and for all in a declaratory judgment proceeding, has never been held by the courts to deprive the court of jurisdiction to enter a declaratory judgment wherein the entire rights of the parties can be determined and settled once and for all.

5. JUDGMENTS AND DECREES — Declaratory Judgments — Liberal Construction of Act. Section 6140h of the Code of 1930 declares that the declaratory judgment act is to be liberally interpreted and administered with a view to making the courts more serviceable to the people.

6. JUDGMENTS AND DECREES — Declaratory Judgments — Bill Asking Court to Construe Lease — Case at Bar. Complainant filed his bill against defendants alleging that his predecessor in title leased to defendants a storehouse, for a period of five years, upon the following terms: Two hundred and thirty-five dollars ($235.00) per month for the first thirty months and two hundred and seventy-five dollars ($275.00) per month for the remaining thirty months. The lease contained a provision that either party might terminate the lease at the end of the term by giving written notice, but in default of such notice, the lease should continue "upon the same terms and conditions as herein contained for another period of five years." No such notice was given. Complainant contended that under the terms of the lease defendants should pay two hundred and seventy-five dollars ($275.00) per month for the entire term of the second period of five years, and defendants claimed that they should only pay two hundred and thirty-five dollars ($235.00) per month for the first thirty months of the second term. The bill alleged as a fact that an actual controversy had arisen between the parties with respect to the proper construction of the lease, and prayed that the court construe the lease and enter a declaratory decree defining the rights of the parties. Defendants demurred to the bill on the jurisdictional ground that complainant was seeking relief in a court of equity in a case where there was a complete remedy at law. The court overruled this demurrer.

Held: That the action of the court was without error.

7. LANDLORD AND TENANT — Lease — Renewal of Lease — Construction of Renewal Clause — Whether Provision that Tenant Shall Pay $235.00 for the First Thirty Months and $275.00 for the Remainder of the Term Applies to the Renewal — Case at Bar. Complainant filed his bill against defendants alleging that his predecessor in title leased to defendants a storehouse, for a period of five years, upon the following terms: Two hundred and thirty-five dollars ($235.00) per month for the first thirty months and two hundred and seventy-five dollars ($275.00) per month for the remaining thirty months. The lease contained a provision that either party might terminate the lease at the end of the term by giving written notice, but in default of such notice, the lease should continue "upon the same terms and conditions as herein contained for another period of five years." No such notice was given. Complainant contended that under the terms of the lease defendants should pay two hundred and seventy-five dollars ($275.00) per month for the entire term of the second period of five years, and defendants claimed that they should only pay two hundred and thirty-five dollars ($235.00) per month for the first thirty months of the second term. Defendants contended that complainant acquiesced and waived any other construction than that contended for by them by accepting two hundred and thirty-five dollars ($235.00) a month for the first three months of the renewal term. Complainant admitted this but alleged that these sums were received conditionally and credited "on account." In their answer defendants charged that the payments were not received conditionally but in conformity with the construction placed upon the contract of lease by the parties. There was no replication to the answer.

Held: That the burden was upon the complainant to make good the charge that the payments were received conditionally, and that the complainant failed to assume this burden.

8. EQUITY — Answers — When Answer Taken as True. — The general rule is that when a cause is heard upon the bill and answer, without replication to the answer, and the answer unequivocally denies the allegations of the bill, then the answer must be taken as true.

9. LANDLORD AND TENANT — Lease — Renewal — Ambiguity as to Terms in Renewal — Practical Construction by the PartiesCase at Bar. Complainant filed his bill against defendants alleging that his predecessor in title leased to defendants a storehouse, for a period of five years, upon the following terms: Two hundred and thirty-five dollars ($235.00) per month for the first thirty months and two hundred and seventy-five dollars ($275.00) per month for the remaining thirty months. The lease contained a provision that either party might terminate the lease at the end of the term by giving written notice, but in default of such notice, the lease should continue "upon the same terms and conditions as herein contained for another period of five years." No such notice was given. Complainant contended that under the terms of the lease defendants should pay two hundred and seventy-five dollars ($275.00) per month for the entire term of the second period of five years, and defendants claimed that they should only pay two hundred and thirty-five dollars ($235.00) per month for the first thirty months of the second term.

Held: That this language was ambiguous and that when the original term provided for by the lease expired and appellants paid the rent pursuant to the provisions of the lease, as construed by them, and without protest appellee accepted the payments for a period of three months, he acquiesced in the construction that appellants were to pay the sum of two hundred and thirty-five dollars ($235.00) per month for the first thirty months of the second term and two hundred and seventy-five dollars ($275.00) for the last thirty months of the second term.

10. INTERPRETATION AND CONSTRUCTION — Practical Construction by the Parties. — It is a well recognized principle of law that when a written instrument is capable of more than one construction, then the courts will give to it that construction which the parties themselves have placed upon it. This is known as "the doctrine of practical construction." No rule for the construction of written instruments is better settled than that which attaches great weight to the construction put upon the instrument by the party themselves.

11. INTERPRETATION AND CONSTRUCTION — Practical Construction by the Parties — Period of Time Covered by the Practical Construction. — The period of time over which a party acquiesces in the construction of a contract asserted by the other party is not the criterion by which the doctrine of practical construction is determined. The test comes when a party to the contract is asserting a right under the contract as he conceives it. If the other party to the contract controverts the assertion of the right, he should do so immediately.

12. LANDLORD AND TENANT — Lease — Terms of Payment — Acquiescence of Lessor in Lessees' Construction of Lease — Case at Bar. The instant case was a controversy between appellee, lessor of a storehouse, and appellants, lessees, as to the monthly rental to be paid by the lessees on renewal of the lease. In view of the fact that no notice was given that appellee would contend that the future rental would be at the rate of two hundred and seventy-five dollars ($275.00) per month instead of two hundred and thirty-five dollars ($235.00) a month, and in view of the further fact that the lessees relied for a period of three months upon their construction of the contract that the rental should be at the rate of two hundred and thirty-five dollars ($235.00) per month for the first thirty months, without protest upon the part of the lessor, it is a fair assumption...

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    ...“before the right is violated.” Patterson v. Patterson, 144 Va. 113, 120, 131 S.E. 217, 219 (1926); see also Chick v. MacBain, 157 Va. 60, 66, 160 S.E. 214, 216 (1931)(“The manifest intention of the legislature ... was to provide for a speedy determination of actual controversies between ci......
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