Purlo Corp. v. 3925 Woodward Ave.

• Decision Date: 29 December 1954
• Docket Number: No. 30,30
• Citation: 67 N.W.2d 684,341 Mich. 483
• Parties: PURLO CORPORATION, a Michigan corporation, Plaintiff and Appellant, v. 3925 WOODWARD AVENUE, Inc., a Michigan corporation, Raymond Schreiber and Sidney W. Foreman, Defendants and Appellees.
• Court: Michigan Supreme Court

Page 684

67 N.W.2d 684

341 Mich. 483

PURLO CORPORATION, a Michigan corporation, Plaintiff and Appellant, v. 3925 WOODWARD AVENUE, Inc., a Michigan corporation, Raymond Schreiber and Sidney W. Foreman, Defendants and Appellees.

No. 30.

Supreme Court of Michigan.

Dec. 29, 1954.

Moll, Desenberg, Purdy & Glover, Detroit, for plaintiff and appellant.

Shapero & Shapero, Detroit, for defendants and appellees.

Before the Entire Bench.

DETHMERS, Justice.

Are the individual defendants, Schreiber and Foreman, hereinafter called defendants, liable for rent due after a certain date under a lease, in which they were named lessees, or a subsequent modification agreement? The lease was for a term of ten years and contained a covenant by defendants to pay the specified rental therefor and to refrain from assigning without lessor's written consent, except that:

'Lessees may assign to a corporation, of which they are principal stockholders, but shall remain individually liable for the performance of terms hereof during the first three years hereof.'

Plaintiff acquired lessor's interest and entered into the modification agreement with defendants, which provided for reduction of monthly rental payments for a limited period and that the lease, as 'specifically modified and amended shall continue in full force and effect and each of the parties hereto does hereby agree to carry out and perform the covenants and obligations thereof.' Later, when the lease had run 28 months, defendants assigned their interest to defendant corporation, of which they were principal stockholders, and it assumed the lessees' obligations under the lease. When the lease had run for three years defendants contended that, under the quoted provision of the lease ('Lessees may assign * * * but shall remain individually liable * * * during the first three years hereof.'), they were no longer individually liable for rent thereafter failling due.

Plaintiff contends that defendants' construction of the three-year provision of the lease is violative of C.L.1948, § 565.5, Stat.Ann. § 26.524, that:

'No covenant shall be implied in any conveyance of real estate * * *.'

Resort to inference or covenant by implication is not necessary to defendants' position. The quoted language of the lease expressed not only the extent of but also the limit upon the liability imposed upon defendants. In prescribing the period during which liability should continue it fixed the time when liability should end. The lease's express permission of the assignment as here made, coupled with its equally express limitation that defendants should, despite such assignment, remain individually liable during the first three years of the lease, constituted an express provision that, upon such assignment, defendants should not be individually liable after the first three years of the lease. The words 'remain liable the first three years' mean precisely what they say. The addition of words 'and no longer' or other words of similar import, to emphasize the meaning already expressed, would have amounted to utter redundancy. Defendants' position does not run afoul of the statute.

Plaintiff says that adoption of defendants' theory, giving effect to the three-year provision, would result in a lack of mutuality of obligation after the three-year period, causing the lease to fail. If plaintiff discerns therein an infirmity fatal to the lease, it scarcely affords comfort to an attempt to hold defendants liable under the lease.

Plaintiff urges that the three-year provision of the lease, as interpreted by defendants, is repugnant to its preceding habendum clause fixing the term of the lease at ten years, and, in that connection, directs attention to the rules of construction that: (1) when an instrument contains two conflicting provisions the first controls; Klever v. Klever, 333 Mich. 179, 52 N.W.2d 653; (2) the habendum clause in a lease dominates the period for which it shall run unless it is properly modified by other provisions; J. J. Fagan & Co. v. Burns, 247 Mich. 674, 226 N.W. 653, 67 A.L.R. 522; and (3) courts will not make a contract for parties nor change the terms of an agreement; Bonney v. Citizens' Mutual Automobile Ins. Co., 333 Mich. 435, 53 N.W.2d 321. In view of the fact that plaintiff's construction of the lease admittedly requires reading out the three-year provision as meaningless, consideration ought likewise to be given to the following rules of construction: (1) In construing a deed of conveyance the first and fundamental inquiry must be the intent of the parties as expressed in the language thereof; Bassett v. Budlong, 77 Mich. 338, 43 N.W. 984; Martin v. Cook, 102 Mich. 267, 60 N.W. 679; Sprunger v. Ensley, 211 Mich. 103, 178 N.W. 714; (2) in arriving at the intent of parties as expressed in the instrument, consideration must be given to the whole and to each and every part of it; Paddack v. Pardee, 1 Mich. 421; Ryan v. Wilson, 9 Mich. 262; Munro v. Meech, 94 Mich. 596, 54 N.W. 290; Curran v. Maple Island Resort Ass'n, 308 Mich. 672, 14 N.W.2d 655; (3) no language in the instrument may be needlessly rejected as meaningless, but, if possible, all the language of a deed must be harmonized and construed so as to make all of it meaningful; Thatcher v. Wardens, etc., of St. Andrew's Church, 37 Mich. 264; Waldron v. Toledo, A. A. & G. T. R. Co., 55 Mich. 420, 21 N.W. 870; Jones v. Pashby, 62 Mich. 614, 29 N.W. 374, in this connection see also Carlson v. Johnson, 275 Mich. 35, 265 N.W. 517; Duval v. Aetna Casualty & Surety Co., 304 Mich. 397, 8 N.W.2d 112; Galperin v. Michelson, 301 Mich. 491, 3 N.W.2d 854; City of Detroit v. A. W. Kutsche & Co., 309 Mich. 700, 16 N.W.2d 128; Bolger v. Rose, 325 Mich. 99, 37 N.W.2d 772; Laevin v. St. Vincent De Paul Society, 323 Mich. 607, 36 N.W.2d 163, 6 A.L.R.2d 815; Singer v. Goff, 334 Mich. 163, 54 N.W.2d 290; (4) the only purpose of rules of construction of conveyances is to enable the court to reach the probable intent of the parties when it is not otherwise ascertainable; Curran v. Maple Island Resort Ass'n, supra. Accordingly, the rule of construction that in case of repugnancy in a deed between its granting and habendum clauses the former controls, Smith v. Smith, 71 Mich. 633, 40 N.W. 21, yields to a contrary...