Lynda Lee Fashions, Inc. v. Sharp Offset Printing, Inc., 112-75
| Decision Date | 04 February 1976 |
| Docket Number | No. 112-75,112-75 |
| Citation | 134 Vt. 167,352 A.2d 676 |
| Parties | LYNDA LEE FASHIONS, INC. v. SHARP OFFSET PRINTING, INC. |
| Court | Vermont Supreme Court |
Miller & Norton, Rutland, for plaintiff.
Sullivan & McCaffrey, Rutland, for defendant.
Before BARNEY, C. J., SMITH, DALEY and LARROW, JJ., and SHANGRAW, C. J., (Ret.), Specially Assigned.
The defendant purchased a commercial building in Rutland in December, 1972, subject to a written lease of the third floor held by the plaintiff lessee. The lease was for an initial term of five years from March 1, 1968, and contained the following option clause:
Provided lessee is not then in default, lessee shall have the right to extend this lease for an additional period of five (5) years beginning November 1, 1973, to and including October 31, 1978, by notifying the lessor in writing on or before May 1, 1973 sent certified mail, return receipt requested, of its intention so to do. . . .
The plaintiff sought to exercise its right of extension, but failed to give the written notice within the prescribed period. The notice actually given was dated May 14, 1973, and sought an extension upon the terms and conditions contained in the original lease instrument.
Because of the untimely notice, the defendant refused to extend, and prior to the expiration of the initial term the plaintiff brought an action for declaratory judgment seeking to prevent the termination of the lease on October 31, 1973. In its complaint, it alleged that it was not in default of any term of the lease, and, as a result of certain conversations between one of its officers, Mr. Micallizzi, and Mr. Robert Sharp, one of the defendant's officers, in December, 1972, the defendant had by parol waived any requirement of written notice as a condition of extension. The defendant denied the allegations made against it in the plaintiff's complaint; also, by counterclaim filed shortly after October 31, 1973, it sought to eject the plaintiff from the premises and recover damages it claimed to have suffered by reason of the plaintiff's occupancy.
The trial court, after making findings of fact, concluded that an oral waiver of the written notice had been made and declared that the lease had been extended for the additional five-year period upon the terms and conditions contained in it. From this judgment, the defendant appeals.
The first ground of the appeal relates to the failure of the court to make findings of fact upon the first precedental condition of the plaintiff's right to extend, namely, that it not be in default at the time it sought to exercise its right of extension. The plaintiff in its declaration recognized this fact by stating that it had duly performed all of the conditions required under the lease and was not in default. The defendant in its answer denied this claim and produced evidence tending to show that such was not the fact. And the plaintiff, on its part, introduced evidence to rebut or explain the evidence of the defendant that it was in breach of certain lease conditions. Both parties made requests to find upon this issue, but none were made.
The trial court is bound to make findings of fact upon all material issues raised by the pleading and evidence. State Highway Board v. Jackson, 128 Vt. 17, 258 A.2d 575 (1969). It is the duty of the court, in making findings of facts, to sift the evidence and state the facts, Neverett v. Towne, 121 Vt. 447, 159 A.2d 345 (1960), and it is our opinion that the facts as found do not warrant the judgment rendered below.
Even though it might be said that the written notice requirement was orally waived by the defendant, the plaintiff's right to an extension could not be held to have accrued unless the trial court affirmatively found as a fact that he was not in default.
The plaintiff now would have us hold that if any default existed it was waived. Again, such fact was not expressly found, and the findings of fact as made do not support such conclusion. Because of the lack of affirmative findings on this material issue, the judgment rendered by the court if unsupportable by the facts found, and the cause must be reversed and remanded.
Inasmuch...
To continue reading
Request your trial
-
City of Burlington v. Hartford Steam Boiler
...to his prejudice or into an altered position." Houle, 102 A.2d at 330 (citations omitted); see also Lynda Lee Fashions, Inc. v. Sharp Offset Printing, Inc., 134 Vt. 167, 352 A.2d 676 (1976). "The burden of establishing a waiver upon the party asserting it." Liberty Mut. Ins. Co. v. Clevelan......
-
Madowitz v. Woods at Killington Owners' Ass'n
...of a known right, and it can arise from conduct as well as from expressed words. Lynda Lee Fashions, Inc. v. Sharp Offset Printing, Inc., 134 Vt. 167, 170, 352 A.2d 676, 677 (1976). The record demonstrates that developers were aware of their rights as implemented through the declaration to ......
-
Architect v. Point Five Dev. S. Burlington, LLC.
...” Toys, Inc. v. F.M. Burlington Co., 155 Vt. 44, 51, 582 A.2d 123, 127 (1990) (quoting Lynda Lee Fashions, Inc. v. Sharp Offset Printing, Inc., 134 Vt. 167, 170, 352 A.2d 676, 677 (1976)). Waiver “involves both knowledge and intent on the part of the waiving party.” Id. We have also recogni......
-
Gonyea v. John Hancock Mut. Life Ins. Co.
...does not necessarily imply that one has been misled to its prejudice or into an altered position. Lynda Lee Fashions, Inc. v. Sharpe Off. Print Inc., 134 Vt. 167, 170, 352 A.2d 676 (1976). With this standard in mind, I turn to whether or not a "genuine material issue of fact" c. Facts It is......