Colonial Trust Co. v. Joseph Hilton, Inc.

• Decision Date: 03 March 1930
• Citation: 149 A. 513,111 Conn. 77
• Court: Connecticut Supreme Court
• Parties: COLONIAL TRUST CO. v. JOSEPH HILTON, INC.

149 A. 513

111 Conn. 77

COLONIAL TRUST CO. v. JOSEPH HILTON, INC.

Supreme Court of Errors of Connecticut.

March 3, 1930

Appeal from Superior Court, Fairfield County; Isaac Wolfe, Judge.

Action for recovery of rent by the Colonial Trust Company against Joseph Hilton, Inc., tried to the court. Judgment for defendant, and plaintiff appeals.

Error and judgment set aside, and case remanded, with directions.

MALTBIE and HINMAN, JJ., dissenting.

Israel J. Cohn, of Bridgeport, for appellant.

Joseph G. Shapiro, Harry Allison Goldstien, and Charles S. Brody all of Bridgeport, for appellee.

Argued before WHEELER, C.J., and MALTBIE, HAINES, HINMAN, and BANKS JJ.

HAINES J.

The plaintiff brought this action upon a claim for rental of certain property in Philadelphia under a lease which is before us of record as Exhibit A, and the defendant denied liability, alleging a full release under the terms of another contract, also in the record, marked Exhibit 2. The trial court based its judgment for the defendant solely upon its construction of these contracts, holding that the language of the contracts was clear and unambiguous. The plaintiff offered certain evidence which it claimed would show the situation of the parties at the time Exhibit 2 was entered into by them, but this was excluded by the court on the ground that there was no uncertainty in the language of the contracts. To this ruling the plaintiff excepted.

The lease, Exhibit A, under which the claimed obligation arose was from the plaintiff to the defendant, dated August 30, 1927, and became operative November 22, 1927, for a term of ten years, seven months, and eight days from the latter date, reserving a monthly rental, payable the 10th day of each month for the preceding calendar month. The defendant entered into possession and paid the rental required by the lease; the last payment being made August 10, 1928, for the month of July preceding.

On July 30, 1928, the parties made the second contract, Exhibit 2. That contract recited the giving of the lease, Exhibit A, and, further, that by the terms of that lease this plaintiff had advanced to the defendant $40,000 to assist in defraying the cost of certain alterations, additions, and improvements in the leased premises, of which sum the defendant still owed the plaintiff $33,000. The recital continues: " Whereas the parties desire to cancel the said agreement (Exhibit A) and take care at this time of the said indebtedness of $33,000 in the manner hereinafter specified." The contract then provided that upon its execution the defendant would pay the plaintiff $15,000 and give four promissory notes: $5,000, payable November 1, 1928, $5,000, payable December 1, 1928, $5,000, payable January 1, 1929, and $3,000, payable February 1, 1929, a total of $33,000, and the lease was to continue till August 31, 1928, when defendant was to vacate the premises, failing which the plaintiff reserved all rights given it under the lease, Exhibit A, for securing possession.

This brings us to the third clause of the contract, Exhibit 2, concerning the interpretation of which the parties are not in accord. The essential portion of this clause is as follows: " Provided that Hilton (defendant) shall have made the payment and given the notes and delivered possession as hereinabove provided for, and shall perform up to and including August 31, 1928, all the agreements on its part to be performed in the agreement between the parties hereto, made August 30, 1927 (Exhibit A) by which Colonial (plaintiff) demised and let to Hilton (defendant) a portion of premises, northeast corner of Market and 13th Streets, Philadelphia, the said agreement shall be terminated and ended on and as of August 31, 1928, at six p. m., until which date the said agreement shall continue in full force and effect * * * and after which date * * * there shall be no further rights or liabilities of either party hereto to the other under said agreement. * * *"

The plaintiff seeks the addition of one of the paragraphs of the draft finding to the effect that the rental of $6,250 provided for in the lease for the month of August, 1928, has not been paid. This states the fact, conceded upon the trial and in defendant's brief, that the defendant has not paid $6,250 for the use of the premises for the month of August, 1928, and we shall treat it as part of the finding.

The defendant continued its occupancy of the premises to August 31, 1928. The rent for the preceding calendar month of July was payable and paid August 10th, and plaintiff claims that the rent for the month of August was due and should have been paid September 10th, but defendant refused payment, on the ground that it was released from that obligation by the terms of the contract, Exhibit 2.

The construction of this contract should conform to the real intent of the parties, and in determining that we consider the language used in the light of the situation which existed. Reading it as a whole, we cannot escape from the conclusion that they desired to cancel the lease in such a way that, after August 31, 1928, no further rights or liabilities should accrue thereunder, to either of the parties. It follows that rights and liabilities which did accrue thereunder up to August 31st were to be given full force and effect. If the defendant continued to occupy the premises during that month, it did so as lessee under the terms of the lease, and it, ex necessitate, incurred an obligation to pay the plaintiff therefor $6,250 required by the lease. The only question presented then is whether any intent of the parties is manifested to release the defendant from this obligation. The contract clearly reflects a purpose in section 1 that the check and notes for the indebtedness of $33,000 should be given at once upon the execution of the contract. In section 2 a purpose appears with equal clearness to continue the lease in all its terms to August 31st. Under this provision the situation was...