Rupp Hotel Operating Co. v. Donn

• Decision Date: 10 January 1947
• Citation: 29 So.2d 441,158 Fla. 541
• Parties: RUPP HOTEL OPERATING CO. et al. v. DONN.
• Court: Florida Supreme Court

29 So.2d 441

158 Fla. 541

RUPP HOTEL OPERATING CO. et al. v. DONN.

Florida Supreme Court

January 10, 1947

On Rehearing Feb. 28, 1947.

Appeal from Circuit Court, Dade County; Stanley Milledge, judge.

Randolph E. Bell and Allen Clements, both of Miami, for appellants.

E. F. P Brigham, of Miami, for appellee.

BUFORD, Justice.

The decree of the court below was entered on bill and answer, in which answer was included a motion to dismiss. No testimony or evidence was submitted.

The issue presented by the pleadings was, 'When did the lease involved expire?'

The lease was dated March 6, 1943, and contained the following pertinent clauses:

'To Have and to Hold the said premises unto the Lessee for an undetermined term of years, to-wit: for the duration of the present World War plus a reasonable period of grace following immediately after the conclusion of the war, not to exceed thirty days of grace, from and after the first day of May, A.D. 1943;'

And also:

'The Lessor hereby grants to the Lessee, or his and/or its assigns, the option to lease the within described premises and the personal property and equipment appurtenant thereto, for a term of one year, starting immediately after the conclusion of the was on the identical terms of payment as set forth in this lease. The said option shall be exercised within the thirty day grace period above referred to, and commencement of said one year additional term will date back to the day following the conclusion of said war or the conclusion of the 'duration."

In this bill of complaint the plaintiff alleged:

'That the present World War has been concluded and was concluded by the unconditional surrender of Japan to the United States of America and her Allies on August 14th, 1945, at which time all hostilities between the warring nations ceased; that by reason thereof, and by reason of the terms and provisions of said lease, said lease has terminated and did terminate thirty days after said date of August 14 1945; plaintiff alleges that the defendants have not exercised said option provided in said lease and are wrongfully in possession of said premises owned by the plaintiff; that the defendants are remaining in possession of said premises because they claim that the term of said lease has not expired because the World War mentioned in said lease has not been concluded and will not be concluded until the President of the United States or Congress, or both, declare the so-called present 'duration' to be at an end, and that they will have thirty days thereafter before the term of said lease expires; that it is necessary that the Court construe the term of said lease and declare the extent of the term of said lease, in accordance with its terms and provisions; that conceivably under the construction of said leases contended for by the defendants, its term may never end, or be of long extent, depending on development of foreign affairs which will make it advisable or necessary for the United States Congress and the President to continue the so-called 'duration,"

In the answer it is averred:

'Defendants deny that the present World War has been concluded defendants deny that the present World War was concluded by the unconditional surrender of Japan to the United States of America and her allies on August 14, 1945; defendants deny that all hostilities between the warring nations in the present World War ceased on August 14, 1945; defendants deny that by reason of the unconditional surrender of Japan to the United States of America and her allies on August 14, 1945 and by reason of the provisions and terms of said lease referred to in the bill of complaint that said lease has terminated and did terminate 30 days after the date of August 14, 1945; defendants admit that they have not exercised the said option provided for in said lease for the reason that the original term of said lease has not expired; defendants admit that they are in possession of the premises owned by the plaintiff but deny that they are wrongfully in possession; defendants admit that they are remaining in possession of said premises because they claim that the term of said lease has not expired because the World War mentioned in said lease has not been concluded; defendants aver and claim that the present World War will be concluded upon the ratification of the treaty of peace, or upon the proclamation of peace; defendants aver and claim that they will have a period of 30 days after the conclusion of the present World War to exercise the option in said lease for extending the term thereof for a period of one year from the date of the conclusion of the present World War; defendants deny that under defendants' construction of said lease the term of said lease may never end; and defendants aver and claim that the terms of said lease are unambiguous.'

So, the court must first determine whether or not the language 'for the duration of the present World War' and the language 'the conclusion of the said war or the conclusion of the duration' is ambiguous. If it is not ambiguous, then the court must so determine and adjudicate the definition. If the language is ambiguous, then the court must determine from evidence submitted whether the parties intended that the lease should terminate 30 days after the cessation of the fighting and the surrender of the enemy on the field of battle or 30 days after the 'conclusion of the duration' of a state of war between the United States and the Axis powers.

The parties were sui juris and used just such language as they wished to use in the contract. The language is that of their choice.

It is a matter of common knowledge that the conclusion of the duration of the war which was in progress on March 6, 1943, has not yet obtained. We may also take judicial cognizance that the very property, a hotel, here involved is under the supervision of the Federal Office of Price Administrator, which is a war-time governmental agency whose authority will terminate with the conclusion of the duration of the present war, if by lawful order it is not sooner suspended.

On October 2, 1946, Mr. Justice Sebring addressed a letter to the Chief Justice and Justices of this Court in which he said:

'The Chief of the Operations Unit, War Crimes Branch of the United States War Department, in a conference which I have had with him, has conveyed to me virtually the same information as is contained in the letter received by the Governor. He has also informed me that the members of the courts referred to are to be judges selected from the Federal and State Courts in the Nation; that the service to be performed by them is essentially active military service in the furtherance of the National War Effort, which, because of its nature, the government has determined should be performed by civilian, not army, personnel; that the courts are to be established in the American Occupied Zone in Germany, which is now under martial law and the military...