Lachman Bros. v. Muenzer, 16765

• Decision Date: 30 July 1956
• Docket Number: No. 16765,16765
• Citation: 143 Cal.App.2d 520,300 P.2d 295
• Court: California Court of Appeals Court of Appeals
• Parties: LACHMAN BROS., a corporation, Plaintiff and Respondent, v. John P. MUENZER et al., Defendants. John P. Muenzer, Defendant and Appellant. Albert Loretz, Kathleen T. Loretz, his wife, Harold G. Tuell and Arnetta E. Tuell, his wife, Defendants and Respondents.

Page 295

300 P.2d 295

143 Cal.App.2d 520

LACHMAN BROS., a corporation, Plaintiff and Respondent, v. John P. MUENZER et al., Defendants John P. Muenzer, Defendant and Appellant Albert Loretz, Kathleen T. Loretz, his wife, Harold G. Tuell and Arnetta E. Tuell, his wife, Defendants and Respondents.

No. 16765.

District Court of Appeal, First District, Division 1, California.

July 30, 1956.

Rehearing Denied Aug. 29, 1956.

Hearing Denied Sept. 25, 1956.

W. L. A. Calder, Abraham Glicksberg, San Francisco, for appellant muenzer.

G. D. Schilling, Ralph Bancroft, San Francisco, for respondent.

FRED B. WOOD, Justice.

Plaintiff's predecessors as lessors and defendant as lessee executed two leases: One dated May 25, 1946, for a five-year term commencing July 1, 1946, at a total rental of $5,400, the other dated June 22, 1951, for a five-year term commencing July 1, 1951, at a total rental of $6,000. In all other respects the provisions of these two leases were identical. The provisions of each lease which furnished the basis for the present controversy were a renewal and cancellation clause and a clause granting the lessee a right of way over an adjoining strip of land for use as a driveway.

In 1953, plaintiff received deeds and assignments from the former owner-lessors and on November 25, 1953, gave defendant notice of cancellation upon the theory that the second lease was but a renewal of the first lease and thus brought into play the lessor's right of cancellation upon electing to build for its 'own occupancy during the extended term.' ¹ Defendant refused to accede to the notice of cancellation, claiming that the second lease was a new lease, separate and independent from the first lease, not a renewal of the first.

The driveway right of way was described, in each lease, as 'an additional fifteen feet (15 ft.) owned by the Lessors, immediately adjoining the leased premises and extending westerly for a sufficient distance to allow the Lessee suitable ingress and Egress for the operation of his business.' A dispute arose, plaintiff claiming that defendant was using for ingress and egress more land than this clause granted him.

Plaintiff brought this action for declaratory relief. The trial court found and decreed: (1) Defendant is in possession under the second lease for a five-year term with a right of renewal for an additional five years; (2) Setting forth in haec verba the provisioins of the renewal and cancellation clause (paragraph Fourteen, quoted in a footnote, above), declared 'That pursuant to above the right of lessors to give lessee a ninety (90) day termination notice will not accrue until after June 30, 1956, and that the plaintiff, as purchaser, transferee and assignee of the original lessors, in the event that after June 30, 1956 it desires to build for its own occupancy, has the right to give the lessors a ninety (90) day written notice cancelling and termination said lease'; (3) For the full term of said lease and any extension thereof (a) the defendant lessee had the right to use the demised premises, (b) 'together with a right-of-way for ingress and egress' over certain property, describing a strip 15 feet wide adjoining the north side of the demised premises and a strip 12 feet wide lying along and adjoining the rear of the demised premises and said 15-foot strip; and (4) declared that each party bear his own costs. Defendant has appealed from those portions of the judgment which are identified by items (2), (3b) and (4) of this summary of the judgment.

As to item (2), defendant erroneously claims that this portion was not within the issues presented by the pleadings and the evidence. Plaintiff in its complaint pleaded the execution of both of the leases and set forth the text of each, alleging that the second was a renewal of the first, invoked the cancellation clause of the first, pleaded the assignment to him of the lessor's interest under each of the leases, and prayed for judgment declaring the rights and duties of the parties with respect to each lease (referring to the second as a renewal of the first), and for general relief. Defendant in his answer admitted the execution of each of the lesses; alleged that the second was a new lease, not a renewal. By way of a separate and distinct defense defendant again pleaded the execution of the second lease, incorporating by reference the provisions thereof as set forth in the complaint; specially pleaded in haec verba the provisions of the renewal and cancellation clause (paragraph Fourteenth of the lease) and in respect thereto alleged 'That pursuant to above the right of lessors to give lessee a ninety (90) day termination notice will not accrue until after June 30, 1956, and then only in the event said lessors elect to build for their own occupancy.' In addition, defendant introduced the second lease in evidence during his cross-examination of one of plaintiff's witnesses and before plaintiff's completion of its case in chief. Under these circumstances we entertain no doubt that the portion of the judgment in question was well within the issues framed by the pleadings and presented by the evidence. Moreover, it is a bit incongruous for defendant to accept the benefit of the adjudication of his rights under the lease and at the same time claim that plaintiff's rights under the same lease were not before the court for adjudication.

Next, defendant says plaintiff cannot invoke the cancellation clause under any circumstance, now or in the future, because that clause runs only in favor of the original lessors, not in favor of an assignee. The answer is that the lease contains a clause which expressly declares that 'the terms and conditions contained herein shall apply to and bind the heirs, successors and assigns of the respective parties hereto.' We find in the right of cancellation here involved nothing peculiarly personal to the original lessors and, therefore, conclude that the assignability clause was intended to apply to it as well as to the other rights of the lessors under the lease. Were there a doubt, it should be resolved against the defendant-lessee, who prepared the lease. Civ.Code, § 1654; Baird v. Lindblad, 75 Cal.App.2d 202, 205, 170 P.2d 488, and authorities there cited.

Defendant further contends that it was improper to declare plaintiff's future right to cancel this lease, a right which could not accrue until after July 1, 1956, and then only in case the lessee exercised his right of renewal. We think that was a question well within the scope of the discretion of the trial court to decide. We cannot say it was an abuse of discretion to entertain jurisdiction to decide the parties' respective rights and duties in such a contingency. 'The purpose of declaratory relief is to liquidate uncertainties and controversies which might result in future litigation and whether a determination is proper in an action for declaratory relief is a matter within the trial court's discretion. Unless a clear abuse of discretion is shown, the trial court's decision will not be disturbed on appeal. Hannula v. Hacienda Homes, Inc., 34 Cal.2d 442, 448, 211 P.2d 302 . As was said in Maguire v. Hibernia Savings & Loan Soc., 23 Cal.2d 719, 729, 146 P.2d 673, 678, 151 A.L.R. 1062: 'The purpose of a...