Darnall v. Day

• Decision Date: 03 May 1949
• Docket Number: 47417.
• Citation: 37 N.W.2d 277,240 Iowa 665
• Parties: DARNALL v. DAY et al.
• Court: Iowa Supreme Court

37 N.W.2d 277

240 Iowa 665

DARNALL v. DAY et al.

No. 47417.

Supreme Court of Iowa

May 3, 1949

Watson & Herrick, of Indianola, for appellants.

Hall & Ewalt, of Indianola, for appellee.

GARFIELD Justice.

On February 2, 1945, defendants, owners of a store building in Indianola leased it in writing to Butler Brothers of Chicago for one year commencing March 1, 1945, with an option to the tenant to extend the term nine more years by a single extension therefor or by nine successive extensions for one year. On July 2, 1945, Butler Brothers, with defendants' consent assigned the lease to plaintiff, J. H. Darnall, who had taken possession June 5, 1945, and who was still in occupancy when this suit was tried in April, 1948.

The provision of the lease for the construction of the new store front is this: '(e) It is specifically agreed that the premises herein demised are not, at present suitable to the needs of the Tenant's business, but that certain alterations, improvements and additions are necessary. Accordingly, the Landlord agrees at his own cost and expense, to complete, on or before one (1) year after the war has ended and material and labor become available, such alterations and improvements in accordance with plans and specifications attached hereto and marked Exhibit 'A' and by this reference made a part hereof.'

The lease also provides that failure of the landlord to complete the improvements within the specified time shall give the tenant the option to cancel the lease. However it is not claimed the tenant would be confined to such remedy.

Rent is fixed by the lease at $540 per annum in equal monthly instalments (of $45) and in addition 3 per cent of the gross sales in the leased premises in excess of $18,000 up to $30,000, payable annually on or before July 5. Sales were such that this added percentage rental amounted to $360 for the second year of plaintiff's occupancy. Plaintiff always paid his rent except the percentage rent of $360 due July 5, 1947, which he deposited in escrow with an Indianola bank June 6, 1947, to be paid over to defendants in the event they constructed the new store front or entered into a contract therefor not later than December 31, 1947. Otherwise the $360 was to be returned to plaintiff. Because of plaintiff's failure to pay this percentage rental defendants caused to be served on plaintiff December 1, 1947, written notice their rights under the lease would be terminated January 1, 1948.

Plaintiff commenced this suit December 16, 1947, asking in Count I a declaratory judgment that the lease is in full force and defendants are obligated thereunder to construct the new store front and in Count II for a decree of specific performance of the agreement so to do and for damages by reduction in the rent because of defendants' failure to make the improvement.

Defendants' answer and counter claim admits the execution of the lease and plaintiff's possession but denies that the war has ended or that defendants have violated the terms of the lease and denies because of plaintiff's nonpayment of rent, the lease is in force. Based on such nonpayment and the notice of termination defendants ask that their title be quieted against plaintiff and they have judgment for the rent due.

Plaintiff's reply denies most of defendants' affirmative allegations and alleges defendants are estopped because of their acceptance of monthly rentals to deny the lease is in force and are estopped because of admissions to plaintiff to deny the war has ended.

The trial court held in favor of plaintiff on all issues, decreed the lease is in full force, ordered defendants to instal a new front immediately and for their failure to make the improvement awarded plaintiff damages of $20 per month from September 1, 1946, until the new front is installed.

I. Defendants contend they are not in default on their agreement to construct the new store front because the war did not end with the cessation of hostilities on 'V.J. day' on or about August 15, 1945, as the trial court held. They say the war will not end until peace treaties are made and ratified. It is conceded there has been no such treaty. We are not inclined to accept this contention.

There is a line of decisions which hold that war does not end with the cessation of hostilities but continues until peace treaties are signed and ratified or peace is formally proclaimed. The existence of war and restoration of peace, according to these authorities, are political questions determined by the legislative and executive departments and such determination is conclusive and binding on the courts. See Palmer v Pokorny, 217 Mich. 284, 186 N.W. 505; Meier v. Schmidt, 150 Neb. 383, 34 N.W.2d 400, 403, 404; Industrial Commission of Ohio v. Rotar, 124 Ohio St. 418, 179 N.E. 135; Waller v. United States, Ct.Cl., 78 F.Supp. 816, and citations; Woods v. Cloyd W. Miller Co., 333 U.S. 138, 68 S.Ct. 421, 92 L.Ed. 596, and citations; 56 Am.Jur., War, section 13; 67 C.J., War, sections 195-197.

However there is an impressive array of authority which supports the trial court's decision that, as commonly understood and especially where the parties to a contract so intend, war ends when hostilities cease. See Kaiser v. Hopkins, 6 Cal.2d 537, 58 P.2d 1278, 1279; Rupp Hotel Operating Co. v. Donn, 158 Fla. 541, 29 So.2d 441 (involving a lease for the 'duration of the present World War'); Scott v. Commissioner of Civil Service, 272 Mass. 237, 172 N.E. 218; Le Fevre v. Healy, 92 N.H. 162, 26 A.2d 681; Glantz v. Willow Supply Co., 139 N.J.Eq. 523, 53 A.2d 346, 348; Lincoln v. Harvey, Tex.Civ.App., 191 S.W.2d 764 (a lease 'for the duration of the war'); Hoover v. Sandfur, 25 Wash.2d 791, 171 P.2d 1009, 168 A.L.R. 170, and Anno. 173; Samuels v. United Seamen's Service, 9 Cir., 165 F.2d 409, involving a lease; New York Life Ins. Co. v. Durham, 10 Cir., 166 F.2d 874; Stinson v. New York Life Ins. Co., App.D.C., 167 F.2d 233, reversing same case in D.C., 69 F.Supp. 860, cited by defendants. Other decisions might be mentioned. The two cases last cited hold that the determination of the existence of war by the political departments of government is conclusive upon the courts only in matters of public concern.

We are disposed here to follow these authorities. Except for Palmer v. Pokorny, supra, 217 Mich. 284, 186 N.W. 505, most decisions which express the view first above stated involve the continuance of wartime legislation rather than private contracts.

'Similarly, where private contracts are in terms limited to the 'duration of the war,' the courts have generally held that the meaning of that phrase is to be decided by determining the intent of the parties, * * *. However there is some authority holding that, despite the clear intent of the parties to the contrary, such a contract remains in force until peace is formally restored.' Citing Palmer v. Pokorny, supra. Note 47 Columbia Law Rev. 255, 267.

We cannot agree with defendants' argument that the words 'after the war has ended' as here used have an accepted legal meaning which is necessarily the equivalent of 'after peace is formally proclaimed.' See sepecially Stinson v. New York Life Ins. Co., supra. The view most favorable to defendants which can be adopted is that the quoted provision of the lease is indefinite or ambiguous and therefore subject to construction.

The primary rule of construction is if possible to give effect to the intention of the parties. City of Osceola v. Gjellefald Const. Co., 225 Iowa 215, 217, 279 N.W. 590; V. L. Dodds Co. v. Consolidated School Dist., 220 Iowa 812, 816, 263 N.W. 522; 17 C.J.S., Contracts, § 295a; 12 Am.Jur., Contracts, section 227.

Unfair or unreasonable results will if possible be avoided. Johnston v. Johnston, 182 Iowa 481, 166 N.W. 65; 17 C.J.S., Contracts, § 319; 12 Am.Jur., Contracts, section 250.

Unless it is shown words were intended in a different sense, they will be given their ordinary and popularly accepted meaning. Carson v. Great Lakes Pipe Line Co., 238 Iowa 50, 53, 54, 25 N.W.2d 855, 857, and citations; 12 Am.Jur., Contracts, section 236.

The practical construction placed upon an ambiguous or indefinite contract by the parties thereto will usually be adopted by the courts. Ft. Dodge Co-op. D. M. Ass'n v. Ainsworth, 217 Iowa 712, 716, 251 N.W. 85, and citations; 17 C.J.S., Contracts, § 325a; 12 Am.Jur., Contracts, section 249.

There is little doubt the parties here intended the words 'after the war has ended' to mean after hostilities have ceased. War, in the practical and realistic sense in which it is commonly used, refers to the period of hostilities and not to a technical state of war which may exist after the fighting has ended. New York Life Ins. Co. v. Durham, supra, 10 Cir., 166 F.2d 874, 876; Stinson v. New York Life Ins. Co., supra, App.D.C., 167 F.2d 233, 238, 239; Kaiser v. Hopkins, supra, 6 Cal.2d 537, 58 P.2d 1278, 1279. There is no evidence the quoted words were used in a technical sense to signify the ratification of peace treaties. The parties did not contract in terms of diplomatic parlance.

The lease itself recites the premises are not suitable to the needs of the tenant's business and that the new front is necessary. Apparently the purpose of delaying the improvement was the shortage of material and labor due to the war. It is shown material and labor were available for the construction of the front within one year after hostilities ceased. To hold defendants are under no obligation to instal it until one year after peace treaties are ratified might conceivably deprive the tenant of the benefits of this provision throughout the entire ten years of the lease and render the provision inoperative. Such a holding would be unreasonable.

Until...