Connecticut Land & Mortg. Co. v. Lesser

• Citation: 72 A.2d 805,136 Conn. 580
• Court: Supreme Court of Connecticut
• Decision Date: 11 April 1950
• Parties: CONNECTICUT LAND & MORTGAGE CO. v. LESSER et al. Supreme Court of Errors of Connecticut

Page 805

72 A.2d 805

136 Conn. 580

CONNECTICUT LAND & MORTGAGE CO. v. LESSER et al.

Supreme Court of Errors of Connecticut.

April 11, 1950.

Theodore Steiber, Bridgeport, for the appellant (plaintiff).

Joseph M. Brandon, New Haven, with whom, on the brief, were David E. FitzGerald, Jr., Charles Tomasino and Arthur H. Ratner, New Haven, for the appellees (defendants).

Before BROWN, JENNINGS, BALDWIN, INGLIS and O'SULLIVAN, JJ.

JENNINGS, Judge.

The plaintiff lessee and defendant lessors have joined in a request for a construction of certain provisions of a lease executed by them. The question concerns the return of a deposit made to secure the obligations of the plaintiff under the lease. The facts were stipulated.

On April 19, 1945, the plaintiff leased from the defendants certain property on Main Street in Bridgeport for the term of forty years with the privilege of two twelve-year renewals. The two paragraphs of the lease which gave rise to the dispute are set forth in the footnote. ¹ The first laid down the conditions under which the lease could be assigned. The second recited the deposit by the plaintiff with the defendants of $10,000 as collateral security for the payment of rent 'and for the faithful performance by it of all the other obligations hereunder.'

The plaintiff assigned the lease to Martin's, Inc., hereinafter referred to as Martin's, a corporation having net assets in the sum of $75,000. At that time the plaintiff was not in default of any of the terms of the lease. Martin's entered into a written agreement with the plaintiff to assume all of the latter's obligations under the lease. The plaintiff and Martin's delivered a written agreement to the defendants wherein Martin's assumed the obligations of the plaintiff under the lease and further agreed to assume and be liable for any obligation which the plaintiff might otherwise have by reason of its covenants and agreements in the lease. Martin's has never offered to deposit $10,000 as security for the faithful performance of its obligations under the lease.

The plaintiff claims in effect that the defendants should be ordered to return the deposit on the ground that it has performed all of its obligations under the lease even though there has been no deposit of $10,000 by Martin's. The defendants claim that Martin's must make the deposit. They express their willingness in that event to return the deposit of the plaintiff and release it from its obligations under the lease. In other words, the plaintiff wants to leave the defendants without a deposit; the defendants insist on one but do not care whether it is made by the plaintiff or Martin's. The trial court did not answer the questions ² categorically but decided that Martin's was obligated to make the deposit and that thereupon the plaintiff would be entitled to a return of its deposit and would be absolved from its obligations under the lease.

A tenant who has performed all of his obligations under a lease is entitled to the return of a deposit made to secure the payment of rent and the performance of covenants. Thibault v. Frechette, 135 Conn. 170, 175, 62 A.2d 863; I Underhill, Landlord & Tenant, § 370; 4 Thompson, Real Property (Perm.Ed.) § 1706, note; 52 C.J.S., Landord and Tenant, § 473, p. 218. Paragraph 15 of the lease entitles the plaintiff to a release of its obligations on the performance of certain conditions. The facts found show that the plaintiff has complied with all of those conditions.

The construction of the lease depends on the intention of the parties as gathered from the language used in the light of the surrounding circumstances. Johnson v. Phoenix Mutual Life Ins. Co. 46 Conn. 92, 101. The lessee is favored in case of ambiguity. 51 C.J.S., Landlord and Tenant, § 232, p. 859. There is nothing in the language of paragraph 16 of the lease which makes it apparent that the parties intended that the $10,000 deposit must be actually paid by the assignee before the assignment would be effective to relieve the plaintiff of its...