I.X.L. Furniture & Carpet Installment House v. Berets

• Citation: 32 Utah 454,91 P. 279
• Decision Date: 27 June 1907
• Docket Number: 1849
• Parties: I. X. L. FURNITURE & CARPET INSTALLMENT HOUSE v. BERETS et al
• Court: Supreme Court of Utah

91 P. 279

32 Utah 454

I. X. L. FURNITURE & CARPET INSTALLMENT HOUSE v. BERETS et al

No. 1849

Supreme Court of Utah

June 27, 1907

APPEAL from District Court, Third District; C. W. Morse, Judge.

Specific performance suit by the I. X. L. Furniture & Carpet Installment House against Louis Berets and others. From a judgment dismissing the action, plaintiff appeals.

AFFIRMED.

S. P Armstrong for appellant.

APPELLANT'S POINTS.

Appellant's defense to said summary proceedings is equitable, so that the city court cannot pass upon its merits. (Fenny v. Child 2 Maule & S. 255; Finney v. Cist, 34 Mo. 303; Brumbaugh v. Springer, 48 W.Va. 121.)

The appellant can secure relief only in an independent action, as for specific performance, and injunction as auxiliary. (Spear v. Ordendorfer, 26 Md. 41; Tscheider v Biddle, 4 Dill. [U.S.] 55; 2 Joyce Inj., pp. 1081, 1094-4; Hunter v. Silver, 15 Ill. 174; 18 Am. & Eng. Enc. L., 695; Railroad v. Railroad, 23 Ill.App. 550; Stock Yards v. Ferry Co., 102 Ill. 521; Kraufman v. Liggett, 208 Pa. St. 88.)

If the language used is ambiguous, or leaves a doubt as to the intent of the parties, it should be resolved so as to prevent a forfeiture. (Eylo v. State, 84 S.W. 611; Marshall v. Vicksburg, 15 Wall. 149; Maughlin v. Perry, 35 Md. 357; Livingston v. Tompkins, 4 Johns Ch. 431.)

And should also be construed most favorably to the lessee. (18 Am. & Eng. Enc. L., 621; 1 Taylor, Land. & Ten. [8th Ed.], sec. 81; Bird v. Baker, 102 Eng. C. L. 12 [1 El. & El.]; Webb v. Dixon, 9 East. 15.)

"In construction of law on the commencement of leases, the strongest shall be taken against the lessor, and most beneficially for the lessee." (Bishop of Bath's Case, 3 Coke, part VI, p. 36; Dann v. Spurrier, 3 Bos. & Pull. 405.)

If it is doubtful whether it terminates on the last day of the month or on the first day of the following month, the lessee may elect on which of the two dates it shall end. (18 Am. & Eng. Enc. L., 621.)

The respondents agreed to continue and renew the lease and give a further lease in case the lessee so elect, and upon request of said lessee at the expiration of the term. The lease terminated at midnight of last day to the term, December 1,1906. (Ackland v. Lutley, 9 A. & E. 879, 36 E. C. L. 320; Wiggins v. Peters, 1 Met. [Mass.] 129; Annan v. Baker, 49 N.H. 171; Rogers v. Barr, 97 Ga. 14; State v. Mitchell, 78 Am. St. [La.] 369.)

Where election is to be made "at the expiration" of a certain date it cannot be made before, and a reasonable time thereafter is allowed; at least request made the next day is in time. Rogers v. Barr, 97 Ga. 14; Davidson v. Mfg. Co., 99 Mich. 501; Chatham v. Plinke, 1 Tenn. Ch. 576; Annan v. Baker, 49 N.H. 170; Wiggins v. Peters, 1 Met. [Mass.] 129; Re Supply Co., L. R. 29 Ch. Div. 206; Farwell v. Rogers, 4 Cush. 463-6; Stewart v. Meyer, 54 Md. 463; Marvin v. Marvin, 75 N.Y. 241; Burgess v. Burgess, 117 N. Car. 447.)

A surrender on the 1st day of July was a surrender at the expiration of the last day of June. (Wiggins v. Peters, 1 Met. [Mass.] 129; Lloyd v. Gregory, 3 Croke [K. B.] 5012. Under such circumstances equity will not regard time as of the essence, but will allow a reasonable time after the expiration, where a forfeiture would otherwise be incurred. (Roberts v. Berry, 52 Eng. Ch. [3 D. M. & G.] 284; Moss v. Barton, L. R. 1 Eq. 474, 29 Vict. 1866; Buckland v. Papillon, L. R. 2 Ch. App. 70; Spear v. Ordendorf, 26 Md. 37; Monihon v. Wakelin, 56 P. 735 [Ariz.]; Walker v. Edmundson, 111 Ga. 457.) If the request had been made a day, a week, or even a month or year late, respondents, it does not appear, would have been hurt, and specific performance would still have been decreed. (Coal Co. v. Dikeman, 84 Ill.App. 379; Banks v. Haskie, 45 Md. 207; Scarlett v. Stein, 40 Md. 524.)

W. R. Hutchinson and J. M. Thomas for respondents.

RESPONDENT'S POINTS.

In 18 A. & E. Enc. of Law (Amer. Ed.), p. 692, sec. 3, the following rule is laid down: "Where a lessee for a term of years has the option to renew his lease it seems to be the better doctrine that he must notify his lessor before the term expires whether he elects to renew, as the lessor should know at the moment when a lease expires whether he has or has not a tenant." In support of this doctrine the following cases are cited: Nicholson v. Smith, 22 Ch. D. 640; Shamp v. White, 106 Calif. 220. Renoud v. Daskam, 34 Conn. 512; Delachman v. Berry, 20 Mich. 292; Taylor on L. & T., 332; 2 Woods, L. & T. (2 Ed.), 947; Jones on L. & T., par. 339, p. 359; Therbaud v. Bank, 42 Ind. 212; Solon v. Lyon, 2 Ves. 690; London v. Mitford, 14 Ves. 41; Darling v. Hobin, 53 Mich. 599.

"The lessee in such case is not obliged to wait until the termination of the lease before he makes his election to have the lease renewed; for the lessor bound to renew when the lessee makes his election and demands renewal. And a tenant under these circumstances would have the right to hold over at the original rent until the renewal rent is fixed, according to the terms of the contract, and a lease tendered." (1 Taylor's L. & T. [9 Ed.], p. 408; Sutherland v. Goodnow, 108 Ill. 528; McAdoo v. Callum, 86 N.C. 419; Renoud v. Daskam, 34 Conn. 512; Stevens v. Reynolds, 6 N.Y. 554; Tracy v. Albany Exchange Bank, 7 N.Y. 472; Willoughby v. Atkinson Furniture Co., 93 Maine 195; Connor v. Withers, 4 S.W. 309.)

FRICK, J. McCARTY, C. J., and STRAUP, J., concur.

OPINION

FRICK, J.

This is an equitable action for specific performance, based upon substantially the following allegations contained in the complaint: That on the 1st day of December, 1904, the plaintiff, a corporation, appellant in this court, and the defendants, respondents here, entered into a certain contract of lease in writing, duly subscribed by the parties, whereby the respondents demised and leased certain premises describing them, to the appellant, for the term of two years thereafter in consideration of $ 2,400, payable in sums of $ 100 per month on the first day of each and every month in advance; that it was further agreed in said lease that in consideration of the sum of $ 1, paid by appellant to respondents, that, in case appellant should so elect, respondents, upon the request of appellant, would at the expiration of said lease, continue and renew the same, and give a further lease on said premises to appellant for the further term of three years commencing from the date of the expiration of said first lease upon the same terms, rental, and conditions as in said first lease contained; that for reasons, which, however, were not unavoidable nor accidental, the appellant further alleges that on the 1st day of December, 1906, when said first lease terminated, it inadvertently overlooked the matter of making a formal request of respondents for a renewal thereof, and did not do so until the 3d day of December, 1906, and that but for that fact it would have made such request for a renewal both before and at the expiration of said lease, and that the failure to do so was a mere oversight and wholly unintentional. Appellant also alleges: That during the summer of 1905 it made certain improvements on said premises, and that during the month of November, 1906, it made further improvements thereon by placing electric wires for lighting the buildings. The whole of the improvements so made it is alleged were of the value of $ 750. That during the month of November, 1906, the president and general manager of appellant met and talked with one of the respondents almost daily, and frequently did so with another of the respondents, and that both said respondents knew and were fully aware during all of said time, and long before the expiration of said lease, that appellant had elected and intended to continue said lease and in the occupation of said premises, and upon information and belief alleges that said two respondents were well aware that the lease was about to expire, but refrained from calling the attention of appellant's manager to such fact, with the intent and purpose of permitting him to overlook such fact, and to prevent him from making a formal request for a renewal of said lease, and thereby to secure an unconscionable and technical advantage. That the respondents were in no wise misled and suffered no damage or loss by reason of the failure of appellant to make a formal request sooner than it was made. That appellant upon the execution and delivery of said lease entered into and was in the sole possession of the premises up to the present time (December 21, 1906), conducting a mercantile business, buying and selling secondhand furniture, goods, and chattels, and that during the time of the occupancy of said premises appellant has built up and established said business and good will thereof on said premises, and thereby the location has become and now is valuable for carrying on and conducting said business. That appellant has duly performed all the conditions of the said lease to be performed by it, and that "on Monday, December 3, 1906, which day was the first business day at the expiration of the term of said lease, the plaintiff requested and demanded from defendants" a renewal of said lease for a further term of three years, upon the same rental and conditions as contained in the original lease, and tendered the respondents the sum of $ 100, as payment for the first month's rent under the renewal, and requested them to comply with their agreement and renew said lease, but that they refused and still refuse to do so. That appellant always has been, and now is, willing to pay said rent, and brings into court said $ 100, as the first month's installment, and always was, and now is, able, ready, and willing to enter into and accept a renewal of said lease pursuant to...