F. B. Fountain Co. v. Stein

• Decision Date: 04 August 1922
• Court: Connecticut Supreme Court
• Parties: F. B. FOUNTAIN CO. v. STEIN.

118 A. 47

97 Conn. 619

F. B. FOUNTAIN CO. v. STEIN.

Supreme Court of Errors of Connecticut.

August 4, 1922

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

Suit by the F. B. Fountain Company against Moses Stein. Judgment for defendant, and plaintiff appeals. Error, and new trial ordered.

Gustaf B. Carlson and S. Harris Warner, both of Middletown, for appellant.

John T. Robinson and Arthur E. Howard, Jr., both of Hartford, for appellee.

WHEELER, C.J.

The plaintiff claims by way of equitable relief a mandatory injunction ordering defendant to renew the lease which it had made with Charles M. Schondorf et al. for premises subsequently purchased by defendant. The term of this lease was for five years from May 1, 1911, with a privilege of four renewals, each for a five-year period. The lease provided in a later part that-

" If the lessee desires to extend this lease for any period after the first five years, then it shall give written notice of such desire to the lessor at least thirty days before the beginning of any such period."

The lease further provided that plaintiff and its sublessees at the termination thereof had the right to remove all buildings erected by them upon the leased premises within 60 days after such termination if the lessor should fail to purchase them for an amount equal to the cost of erection. The plaintiff had occupied these premises since 1901 under three certain leases executed prior to the present lease.

During his tenancy plaintiff had erected certain small buildings and made improvements on the leased premises, which had cost about $8,000, and the replacement value at the time this action was brought was much greater. The sublessees had also erected buildings and made improvements to their leased premises which had cost about $8,000, and the replacement value would be a greater sum. In June, 1920, Schondorf et al conveyed these premises to defendant.

In August, 1920, Mr. Fountain, the president and treasurer of plaintiff, and the defendant had a conversation concerning this purchase, and Fountain told defendant that plaintiff had a lease of the premises for a considerable time, to which defendant replied that he knew all about the terms of the lease. Fountain did not then, nor at any time, except as herein stated, notify defendant that he intended or desired to renew the lease at the expiration of the then term, and defendant did not then or at any time waive the 30 days' clause. April 4, 1921, Fountain called upon defendant in regard to certain improvements he desired to make upon the premises, and was informed by defendant that the lease would not be renewed beyond April 30, 1921, and that action for the possession of the premises had been begun.

Fountain then said that he had duly sent to defendant for plaintiff a written notice of its intention to renew the lease as provided therein. This statement was untrue. On April 4 1921, defendant served written notice on plaintiff to quit possession. On April 4, 1921, after service of such notice had been made on plaintiff, and in consequence of it, and of notice from defendant that his lease would expire on April 30, 1921, plaintiff caused to be served on defendant a written notice of its desire to extend its lease for another term of five years from May 1, 1921, under the lease. This notice was dated March 31, 1921, but was drawn up on April 4th, subsequent to receipt of the notice to quit from defendant.

The plaintiff argues that, since the 30-day notice clause is detached from the provision for a renewal, it does not affect that provision. All of the clauses of the instrument are to be construed together as a whole, so as to give effect to all of its parts. I. X. L. Furniture, etc., Co. v. Berets, 32 Utah, 454, 91 P. 281. Unless the 30-day notice clause does apply to the renewal provisions, it has no place in the instrument. The only construction which gives it a meaning is to make it applicable to each of the several clauses of renewal. In the view we take of the case, no importance attaches to the fact that one of these clauses uses " with the privilege of renewal" and " the right to renew," and the other " if the lessee desires to extend this lease." Aside from this it seems clear that the latter clause was used in the sense of " if the lessee desires to exercise the privilege of renewal." When any term of this lease expired, the lease was at end.

" The agreement for renewal conveyed no right nor interest in the premises beyond the term." Platt v. Cutler, 75 Conn. 186, 52 A. 820; Bluthenthal v. Atkinson et al., 93 Ark. 252, 257, 124 S.W. 510.

" At most it [the agreement for renewal] gave the defendant a right, if he complied with the conditions upon which the right was based, to obtain a lease for two years more, but he did not in fact obtain such a lease." Platt v. Cutler, 75 Conn. 186, 52 A. 820.

The 30 days' clause was a condition precedent to the taking effect of the renewal term. No rights to a renewal could vest until plaintiff had complied with the terms of this condition.

" No title has vested and none is to vest until the condition is performed." Davis v. Gray, 16 Wall. (U. S.) 229, 21 L.Ed. 447; Bluthenthal v. Atkinson et al., 93 Ark. 257, 124 S.W. 510; Dikeman v. Sunday Creek Coal Co., 184 Ill. 546, 56 N.E. 864.

Such a condition must be performed before the estate created by the renewal can begin. Wood on Landlord and Tenant (2d Ed.) § 584. When this lease provided for the giving of a notice by this condition precedent, this requirement could not be dispensed with, and must be complied with literally. Murtland v. English, 214 Pa. 325, 329, 63 A. 882, 112 Am.St.Rep. 747, 6 Ann.Cas. 339; Tiffany on Landlord and Tenant, § 809, p. 1377.

Since the 30-day notice was not given at least 30 days before the expiration of the term of the lease on May 1, 1921, the plaintiff has no right to relief unless it can establish a waiver, or such facts as will bring it within the power of equity to relieve. And this it claims to have done. The plaintiff bases its claim of waiver upon the conversation of August, 1920. All that the court finds to have occurred is that defendant said he knew all about the terms of the lease, and that nothing was then said as to plaintiff's intention to renew, nor did the defendant in express terms waive the 30-day notice requirement of the lease. These facts fall far short of proving a waiver, and cannot be permitted to set aside the terms of a contract of lease which the parties have deliberately made. O'Keefe v. St. Francis' Church, 59 Conn. 551, 560, 22 A. 325. The plaintiff seeks to have these findings corrected so as to show that plaintiff at this interview only informed the defendant of its intention to renew the lease, and defendant informed plaintiff that he knew he had that right, and that such renewals would be satisfactory to him. Had the court so found, it must have held either that defendant had waived his right to enforce the 30-day notice, or that equity would relieve against the enforcement of this clause in the lease. Instead of so finding, the court found directly to the contrary, and the finding of the court was made upon conflicting evidence, and must stand.

The plaintiff asks for equitable relief upon the claim that the delay was not unreasonable, and had caused defendant no damage, and was due to inadvertence or negligence, not gross or willful, and that the forfeiture would entail great loss on it and its sublessees, by reason of the improvements they had made upon these premises. The loss to plaintiff is not found by the court, and cannot be inferred from the facts found as a matter of law. That the delay may have been slight and may have...