Judd v. Mutual Bank & Trust Co.

• Decision Date: 22 March 1932
• Citation: 159 A. 487,114 Conn. 553
• Parties: JUDD v. MUTUAL BANK & TRUST CO.
• Court: Connecticut Supreme Court

159 A. 487

114 Conn. 553

JUDD v. MUTUAL BANK & TRUST CO.

Supreme Court of Errors of Connecticut.

March 22, 1932

Appeal from Superior Court, Hartford County; Inglis, Judge.

Action by Florence Gates Judd against the Mutual Bank & Trust Company to recover rent under a lease, brought to the superior court. A demurrer to an amended answer to the first count was sustained, and judgment rendered for the plaintiff on the pleadings, and defendant appeals.

Error and cause remanded.

Josiah H. Peck, of Hartford (Louis M. Schatz, of Hartford, on the brief), for appellant.

Harry L. Nair and Bernard C. Kamerman, both of Hartford (Solomon Elsner, of Hartford, on the brief), for appellee.

Argued before MALTBIE, C.J., and HAINES, HINMAN, BANKS, and AVERY JJ.

HINMAN, J.

Under the first count of her complaint the plaintiff sought to recover, under a lease made between the plaintiff and the defendant on June 18, 1925, an installment, of rent for the monthly period beginning December 15, 1930. After a demurrer to the original answer to this count had been sustained Jennings, J., the defendant filed an amended answer admitting the lease, but alleging that prior to the execution thereof the defendant owned and occupied its own banking quarters but by reason of its poor financial condition was forced to sell its building and seek quarters elsewhere: that notwithstanding the sale, the defendant's financial condition remained the same, and its ability to continue to function successfully was uncertain, and that these facts were known to the plaintiff and her agents and the defendant when the lease was executed. Also, that the lease contained the following provision: " This lease is made further upon the express condition that in the event of any assignment for the benefit of creditors of the party of the second part for voluntary or involuntary liquidation, that forthwith and immediately this lease shall expire and terminate, and the party of the first part be entitled to immediate possession and occupancy of the within premises; " and that the parties intended that, upon the execution of such an assignment, the lease should be automatically terminated. On or about November 6, 1930, the defendant made an assignment for the benefit of creditors for voluntary liquidation, and on or about November 9th vacated the premises. The plaintiff demurred to these allegations upon the grounds, in substance, that the provision of the lease quoted in the amended answer gives to the lessor a right or re-entry and a power to terminate the lease upon a condition subsequent, to be exercised at her option, but it does not appear that the plaintiff has made any entry or otherwise exercised her option to terminate the lease which would relieve the defendant from any duty to pay the rental sued for; also, that the intent of the parties alleged is not expressed by the written lease. The demurrer was sustained upon these grounds. Further grounds to the effect that the assignment alleged to have been made was not within the meaning of the condition expressed in the lease were overruled. This appeal relates only to the ruling sustaining the demurrer.

It appears from the memorandum of decision that this ruling was based upon a holding that, as the language of the clause of the lease relied upon by the defendant states that the lease is made upon the " express condition" set forth in that paragraph, no other meaning or effect can be given to the provision than that technically attaching to a " condition" as applied to estates in land, viz., that, although the duration of the estate is subject to a contingent event, the mere happening of the event does not end the estate, but some affirmative action on the part of the lessor is necessary in order to work a termination, as distinguished from provisions in the nature of special limitation, by virtue of which the estate terminates upon the happening of the specified contingency without any action by either party. Tiffany, Landlord & Tenant, § 194.

It has been held that, where a purely technical term is found in the midst of the language of ancient leases, a presumption arises that the parties used it in its strict common-law meaning. Michaels v. Fishel, 169 N.Y. 381, 62 N.E. 425, 427. It is also doubtless true that, when such a term is used in a formal clause which by common usage and recognition has been accepted as having a meaning and effect consistent with the significance of the technical term, or where there is nothing to indicate or suggest that such a term is used in other than the narrow and technical meaning which it has acquired at common law, it is to be presumed to have been used with that meaning. Otherwise, the construction to be placed upon the provision remains a question of the intention of the parties, to be deduced from the whole instrument, and the context may qualify the meaning of the technical terms so as to cause it to conform to the intention of the parties. Tiffany, Landlord & Tenant, § 194, p. 1368; Tiffany on Real Property, § 68; 35 C.J., p. 1179. What is sought is the understanding and agreement which the parties intended to express, and, unless that is so stated as to leave no reasonable room for question, the intention is to be sought and determined in the light of all the surrounding and significant circumstances. Miller v....