Ingalls v. Roger Smith Hotels Corp.

• Decision Date: 15 November 1955
• Citation: 118 A.2d 463,143 Conn. 1
• Court: Connecticut Supreme Court
• Parties: John H. INGALLS et al. v. The ROGER SMITH HOTELS CORPORATION. Supreme Court of Errors of Connecticut

Page 463

118 A.2d 463

143 Conn. 1

John H. INGALLS et al. v. The ROGER SMITH HOTELS CORPORATION.

Supreme Court of Errors of Connecticut.

Nov. 15, 1955.

William C. Strong and Joseph M. Kaye, Greenwich, with whom was Nathan B. Bernstein, of the New York bar, New York City, for appellant (defendant).

Morgan P. Ames, Stamford, with whom was Francis P. Schiaroli, Stamford, for appellees (plaintiffs Adams et al.).

E. Gaynor Brennan, Stamford, appeared for appellees (plaintiffs John H. Ingalls et al.).

Before INGLIS, C. J., and BALDWIN, O'SULLIVAN, WYNNE and DALY, JJ.

O'SULLIVAN, Associate Justice.

The plaintiffs brought this action for a declaratory judgment to determine whether they, as lessors, or the defendant, as lessee, should bear the cost of certain changes ordered by the fire marshal in a hotel building. The court determined that the plaintiffs were obligated to pay for three of the changes and the defendant for all the others. The defendant has appealed from the judgment.

The facts found by the court are not subject to correction. They may be summarized as follows: On June 19, 1943, the plaintiffs, as owners of the Hotel Davenport in Stamford, leased it in writing to The Old Fashioned Hotels Corporation, the latter agreeing to conduct a hotel business on the premises. The term of the lease was to end on May 15, 1957. Shortly after its execution, the lease was assigned by The Old Fashioned Hotels Corporation to the defendant, with the plaintiffs' consent. The lease provided for a graduated basic rental plus a percentage of the lessee's gross receipts in excess of a stipulated amount. The defendant's net income from its operation of the hotel from 1946 to 1952, inclusive, averaged about $1400 annually.

The General Assembly of 1947 authorized the state fire marshal to establish a fire safety code. General Statutes, Sup.1947, § 626i, Rev.1949, § 3665. He was directed to set up regulations designed to provide reasonable safety from fire, smoke and panic in various types of buildings, including those used as hotels. Ibid. Pursuant to this grant of authority, the marshal prepared a state fire safety code. Following promulgation of the code on September 23, 1947, the local fire marshal made an inspection of the Hotel Davenport and, upon finding that it violated many provisions of the code, ordered seventeen items of work to be done to make the building conform to the requirements relating to hotels. ¹ The total expense for all of the work will reach $29,637. The installation of a sprinkler system will be the most expensive single item. It will cost $16,887.

The court held that the plaintiffs must assume the expense of making three corrections (identified as 1, 5 and 16 in footnote 1) and that the defendant must pay for all the others. The ratio decidendi of the trier in determining this dichotomy of responsibility was that the provisions of the lease required the plaintiffs to bear the cost of all structural changes and the defendant the cost of the remaining items. The first matter for determination, then, is whether that construction was correct.

The lease is voluminous. It contains several articles which have a bearing on the matter now under discussion, although in the interest of brevity we mention but two, since they are decisive. In article 8(3), the lessee covenants '[t]o keep the interior and exterior of the demised building in adequate, proper and satisfactory repair at the expense of the Lessee, provided the Lessee shall be under no obligation to make structural alterations or repairs * * *.' The emphasis is ours and is made solely because of the significance of the words. Article 16 reads as follows: 'The Lessee covenants, stipulates and agrees during the term of this lease [that] it will conduct on the demised premises a first class hotel at all times during the term of this lease * * *; that it will not use said premises for any unlawful purpose and will keep and save the Lessors harmless from any penalties, damages, suits, fines, judgment or other charges imposed for any violation of any present or future * * * State or municipal law and will save and keep harmless the Lessors against and from any losses, suits, damages, judgments, costs and expenses arising out of the construction, erection, maintenance and repair of the demised building * * *. And it is further agreed between the parties hereunto, that the Lessee is to comply with, and to conform to all the laws of the State of Connecticut, and the by-laws, rules and regulations of the City and Town of Stamford, relating to * * * fire * * * so far as the premises hereby leased are, or may be concerned; and to save the Lessors harmless from all fines, penalties and costs for violation of, or noncompliance with the same.'

A lease is a contract. Cohn v. Fennelly, 138 Conn. 474, 476, 86 A.2d 183. In construing it, three elementary principles must be kept constantly in mind: (1) The intention of the parties is controlling and must be gathered from the language of the lease in the light of the circumstances surrounding the parties at the execution of the instrument; (2) the language must be given its ordinary meaning unless a technical or special meaning is clearly intended; (3) the lease must be construed as a whole and in such a manner as to give effect to every provision, if reasonably possible. Perkins v. Eagle Lock Co., 118 Conn. 658, 663, 174 A. 77. If the language is ambiguous, the construction which favors the lessee should be adopted. Connecticut Land & Mortgage Co. v. Lesser, 136 Conn. 580, 583, 72 A.2d 805. Furthermore, an unexpressed intent is of no significance. Ziulkoski v. Barker, 94 Conn. 491, 494, 109 A. 185. The controlling factor is the intent expressed in the lease, not the intent which the parties may have had or which the court believes they ought to have had. Hansel v. Hartford-Connecticut Trust Co., 133 Conn. 181, 194, 49 A.2d 666; Colonial Trust Co. v. Joseph Hilton, Inc., 111 Conn. 77, 83, 149 A. 513.

Article 8(3) is devoted to the covenant of the defendant concerning the work it was to perform upon the demised premises. As has previously been stated, the defendant agreed to keep the interior and exterior of the building in adequate, proper and satisfactory repair; and then, in order to limit the scope of this agreement, the parties expressly excluded therefrom any obligation on the defendant's part 'to make structural alterations or [structural] repairs.' In one form or another, the word 'repair' appears many times throughout the lease. In the use made of the word there is nothing to suggest that the parties employed it in any special or technical sense. Hence, the word must receive its ordinary meaning, namely, the restoration to a sound or good state after decay, dilapidation or injury. Dorne v. Williams, 140 Conn. 193, 200, 98 A.2d 796; Webster's New International Dictionary (2d Ed.). It does not mean to make something new but rather to refit or restore an existing thing. Todd v. Inhabitants of Rowley, 8 Allen 51, 58, 90 Mass. 51, 58; Wattles v. South Omaha Ice & Coal Co., 50 Neb. 251, 260, 69 N.W. 785, 36 L.R.A. 424. By the covenant set forth in article 8(3), then, the defendant agreed to do nothing more than to restore...