Scirpo v. McMillan

• Decision Date: 14 April 1969
• Citation: 247 N.E.2d 368,355 Mass. 657
• Parties: Paolo SCIRPO et al. 1 v. Genevieve McMILLAN, Trustee.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 368

247 N.E.2d 368

355 Mass. 657

Paolo SCIRPO et al. ¹ v. Genevieve McMILLAN, Trustee.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued March 5, 1969.

Decided April 14, 1969.

Richard L. Seegel, Boston, for plaintiffs.

William M. O'Brien Cambridge, for defendant.

Before WILKINS, C.J., and SPALDING, WHITTEMORE, CUTTER, and KIRK, JJ. WHITTEMORE, Justice.

The issue on the plaintiffs' appeal from a final decree in a suit for a declaratory decree is the construction of the provision in a lease made on June 17, 1962, of premises in Cambridge under which Paolo Scirpo (hereinafter the plaintiff) was lessee and the defendant was lessor reading: 'For a period of five years starting Sept 15 1962 with an option of further extension' (emphasis supplied).

The evidence is before us. The judge made a report of material facts. The lease had been drawn by the defendant. The judge, after stating the plaintiff's contention that he was entitled to a second five year term on the same terms and conditions, found that the defendant never agreed to this and that the words emphasized above mean only that the parties were to negotiate with respect of the lease. His further finding that the parties understood that this was the meaning is based on a letter written on June 27, 1962, to the plaintiff by an attorney whom the defendant consulted about the lease, ² taken with the circumstance that the plaintiff after receiving the letter did not 'place the defendant on notice that he did not agree to the terms of the lease and that he did not intend to be bound by it.' The judge found that the plaintiff had not begun his reconstruction under the lease to make the premises useful as his intended coffee shop or Espresso bar. The defendant also signed the letter and delivered it to the plaintiff. He testified that she asked him to sign it and that he declined, saying, 'We already make one contract, why another one?' The plaintiff objected and excepted to the admission in evidence of the letter.

We think the plaintiff's construction is right. In Cunningham v. Pattee, 99 Mass. 248, 250, 252, this court construed the clause, "* * * to renew said indenture (of sub-lease) for such further term as * * * (the lessors') leasehold estate in the premises may be renewed or extended." The court held that the word 'renewal' 'imports the giving a new lease like the old one, with the same terms and stipulations * * * (except that) (t)he renewal covenant is not to be inserted in the new lease.' That rule was restated as 'generally recognized as sound in law' in Shannon v. Jacobson, 262 Mass. 463, 465, 160 N.E. 245. See Gardella v. Greenburg, 242 Mass. 405, 407, 136 N.E. 106, 26 A.L.R. 1411. In Mutual Paper Co. v. Hoague-Sprague Corp., 297 Mass. 294, 8 N.E.2d 802, this court construed a provision giving the lessee 'the right to an extension of said term' with an elaborate method for determining the rent in the extended term. The defendant (an assignee of the lessor) conceded that a general covenant of renewal implies an additional term equal to the first and upon the same terms, but contended that because of the difference between a renewal and extension the rule of the Cunningham case did not apply. The court said at p. 299, 8 N.E.2d p. 806, 'No reason is perceived why, as in the case of renewals, where no term is named in the extension provision, the extension term should not be the same term as that in the original lease.'

The distinction between renewal and extension relates to whether a new instrument is called for (see Gibbs Realty & Investment Corp. v. Carvel Stores Realty Corp., 351 Mass. 684, 685--686, 223 N.E.2d 534, and cases cited), and has no bearing on the construction of a general clause for a further term. No case has been found in which the parties had not defined to some extent the terms to be applicable in the renewal or extension period. But the principle appears equally applicable to the general clause here used.

The evidence clearly permitted the finding that the defendant did not intend to agree to a five year extension at least on the same terms. But both parties intended to agree to the lease they signed and delivered. The finding that the lessee understood that the lease meant what the attorney's letter said it meant is unjustified. The lessee testified tht at the time of signing he objected to the five year term saying he had agreed to an increase in rent from $190 (first discussed) to $300 a month because of his understanding that it would be ten years and that the defendant had said, in respect of the provision she had written, 'This means the same thing.' This by itself could of course be disbelieved, but the plaintiff's testimony of his understanding of what the lease meant was expressly confirmed by the defendant. She testified that she went to the attorney because she 'knew that Mr. Scirpo thought it was a ten year lease and * * * (she) only intended it to be five.' ³

The mistake of law by one party to the contract was not a ground for avoiding it. John J. Bowes Co. v. Inhabitants of Town of Milton, 255 Mass. 228, 233--234, 151 N.E. 116. See Eno v. Prime Mfg. Co., 317 Mass. 646, 650--651, 59 N.E.2d 284, and cases cited; Cohen v. Santoianni, 330 Mass. 187, 193, 112 N.E.2d 267; Century Plastic Corp. v. Tupper Corp., 333 Mass. 531, 533--534, 131 N.E.2d 740.

The bill of...