Dries v. Trenton Oil Co.

• Decision Date: 15 January 1952
• Docket Number: No. A--603,A--603
• Citation: 86 A.2d 427,17 N.J.Super. 591
• Parties: DRIES v. TRENTON OIL CO., Inc. et al.
• Court: New Jersey Superior Court — Appellate Division

Page 591

17 N.J.Super. 591

86 A.2d 427

DRIES v. TRENTON OIL CO., Inc. et al.

No. A--603.

Superior Court of New Jersey Appellate Division.

Argued Dec. 17, 1951.

Decided Jan. 15, 1952.

George M. Hillman, Mount Holly, for plaintiff-respondent.

George Warren, Trenton, for defendant-appellant.

Before Judges JACOBS, EASTWOOD and BIGELOW, JJ.

The opinion of the court was delivered by

EASTWOOD, J.A.D.

On February 6, 1946, the plaintiff, George Dries, leased the premises in question to George Seitz and Herbert Amison, for a term of five years, commencing March 1, 1946, together with an option to renew for a further term of five year at a higher rental, provided that the lessees give written notice of their intention to exercise the option 60 days prior to the expiration of the first five-year period.

On the same date, the lessees, Seitz and Amison, sublet the premises to Trenton Oil Company, Incorporated (hereinafter referred to as the 'oil company'), on terms similar to the primary lease, except that provision was made for the option to renew the same upon a year-to-year basis for a total not exceeding five years. Attached to this sublease was a consent executed by the original lessor, George Dries.

In November, 1950, more than three months prior to the expiration of the original term, the plaintiff allegedly visited the office of Anthony E. Conte, president of the defendant oil company, and discussed the terms of the lease and the continuation thereof under the terms of the option. The oil company asserts that an agreement was reached with plaintiff for the renewal of the lease and, relying thereon, no written notice of exercise of option to renew was given plaintiff under the terms of the original lease. After the time for giving the required written notice had expired, the plaintiff communicated with defendant declaring the lease to be at an end. An action for ejectment was instituted in the Superior Court, Law Division, and at the end of defendant's case, the court granted the plaintiff's motion for a directed verdict against the defendant, on the ground that defendant had failed to properly exercise its option to renew under the terms of the lease. The oil company appeals to this court from the ensuing judgment.

The oil company contends that the trial court erred in: (1) excluding testimony concerning circumstances surrounding the execution of the two leases and negotiation preliminary to the alleged agreement of November, 1950; and (2) granting plaintiff's motion for directed verdict.

We are satisfied that the court correctly excluded testimony sought to be admitted by the appellant concerning the circumstances surrounding the execution of the two leases. The appellant contends that 'one of the vital questions in the case was whether the plaintiff was bound by the terms of the second lease' and, therefore, the court erroneously 'refused to permit testimony concerning the circumstances surrounding the execution of the two leases and bearing on the intent of the parties, particularly of the plaintiff.' A careful examination of the portions of the two leases appearing in the appendix convinces us that there is no uncertainty or ambiguity in either, but, on the other hand, they clearly state the terms and conditions provided therein. The New Jersey rule is settled that '* * * where there is a clear implication of fact from the writing itself that it fully expresses the whole bargain between the parties (here it is explicit), contradiction of the implication by parol evidence is no more permissible than the contradiction of the express terms of the writing. There is an obvious difference between an implication based on an inference of actual manifestation of assent and an implication made by the law to fill a gap in what has been expressed. Marcus & Co., Inc., v. K.L.G. Baking Co., Inc., 122 N.J.L. 202, 3 A.2d 627; Cohn v. Dunn, supra (111 Conn. 342, 149 A. 851, 70 A.L.R. 740); Williston on Contracts (Rev.Ed.), sections 633, 640; 32 C.J.S., Evidence, § 853 (p.) 789; 46 A.J. 343. Extrinsic evidence of an agreement at variance with an implication of fact in the integration itself is on principle inadmissible, for what is clearly implied from the writing derives its force from the common intention of the parties equally with the express stipulations. The memorial here on its face purports to embody all the stipulations of the contract; and the admission of parol evidence of an agreement for performance at a...