McShane v. Imperial Towers, Inc.

• Decision Date: 10 June 1980
• Docket Number: No. 14309,14309
• Citation: 267 S.E.2d 196,165 W.Va. 94
• Court: West Virginia Supreme Court
• Parties: George H. McSHANE v. IMPERIAL TOWERS, INC.

Page 196

267 S.E.2d 196

165 W.Va. 94

George H. McSHANE v. IMPERIAL TOWERS, INC.

No. 14309.

Supreme Court of Appeals of West Virginia.

June 10, 1980.

Syllabus by the Court

"While the general rule is that the construction of a writing is for the court; yet where the meaning is uncertain and ambiguous, parol evidence is admissible to show the situation of the parties, the surrounding circumstances when the writing was made, and the practical construction given to the contract by the parties themselves either contemporaneously or subsequently. If the parol evidence be not in conflict, the court must construe the writing; but if it be conflicting on a material point necessary to interpretation of the writing, then the question of its meaning should be left to the jury under proper hypothetical instructions." Syllabus Point 4, Watson v. Buckhannon River Coal Co., 95 W.Va. 164, 120 S.E. 390 (1923).

William E. Mohler, Charleston, for appellant.

Steptoe & Johnson and Otis L. O'Connor, Charleston, for appellee.

MILLER, Justice:

Imperial Towers, Inc., appeals a jury verdict rendered in favor of its tenant, George H. McShane, in the amount of $1,239.53. The primary ground of error is the claim that the court erred in holding as a matter of law that under Imperial Towers' lease with McShane, the failure to deliver possession of the premises to McShane on April 1, 1976, rendered Imperial Towers liable in damages.

The basic facts are not in substantial dispute. Imperial Towers agreed by a written lease to rent an apartment to McShane for a one-year term commencing April 1, 1976. At the time the lease was negotiated there was an existing tenant in the apartment, a Mr. Romanach, whose lease was to expire on March 31, 1976. Shortly prior to the expiration of his lease, Mr. Romanach informed Imperial Towers that he would be unable to vacate the apartment by March 31, 1976. Imperial Towers advised McShane of this problem. In April of 1976, Imperial Towers brought suit to evict Mr. Romanach and obtained a court order forcing him to vacate the apartment by the end of April, 1976. Because McShane was compelled to take occupancy a month later than provided for in the lease, he brought suit to recover damages for the temporary rental expenses he had incurred.

Imperial Towers asserted it was not liable for damages on the basis of Section 20 of its written lease with McShane. ^* The trial court, however, ruled as a matter of law that this provision was applicable only to a delay in occupancy resulting from the original construction of the apartment building. We do not agree that such a construction of the involved lease section can be made as a matter of law.

We believe there is some ambiguity in Section 20 of the lease. The first paragraph can be interpreted as providing a right to the tenant to terminate the lease if the landlord does not deliver occupancy on the date specified. This paragraph is rather broadly written and can be construed to mean that if for any reason the landlord is unable to give occupancy, the tenant can terminate the lease. The terms "substantially completed and ready for occupancy" which appear in other portions of Section 20 do not necessitate a construction that only if the entire apartment dwelling is under construction is the landlord relieved of his failure to deliver occupancy.

We believe that this lease provision is sufficiently ambiguous that the trial court should have permitted the parties to introduce extrinsic evidence to show the circumstances surrounding the lease. We stated in Syllabus Point 4 of Watson v. Buckhannon River Coal Co., 95 W.Va. 164, 120 S.E. 390 (1923):

"While the general rule is that the construction of a writing is for the court; yet where the meaning is uncertain and ambiguous,...