South Parkway Bldg. Corp. v. South Center Dept. Store, Inc.

• Decision Date: 27 June 1958
• Docket Number: Gen. No. 47331
• Citation: 19 Ill.App.2d 14,153 N.E.2d 291
• Parties: SOUTH PARKWAY BUILDING CORPORATION, an Illinois corporation, Plaintiff-Counter- Defendant, Appellant, v. SOUTH CENTER DEPARTMENT STORE, Inc., formerly known as Meadows Mercantile Corp., an Illinois corporation, Defendant-Counter-Plaintiff, Appellee.
• Court: United States Appellate Court of Illinois

Page 291

153 N.E.2d 291

19 Ill.App.2d 14

SOUTH PARKWAY BUILDING CORPORATION, an Illinois corporation Plaintiff-Counter- Defendant, Appellant, v. SOUTH CENTER DEPARTMENT STORE, Inc., formerly known as Meadows Mercantile Corp., an Illinois corporation Defendant-Counter-Plaintiff, Appellee.

Gen. No. 47331.

Appellate Court of Illinois, First District, Third Division.

June 27, 1958.

Thompson, Raymond, Mayer, Jenner & Bloomstein, Chicago, Anan Raymond, Albert E. Jenner, Jr., Prentice H. Marshall, Chicago, of counsel, for appellant. at Theodore Revzan, Mayer Goldberg, Chicago (Burton Berger, Marvin Sacks, Chicago, of counsel), for appellee.

BRYANT, Justice.

This case involves the construction of the granting clause of a lease. The lease was executed on June 24, 1952 between South Parkway Building Corporation, as lessor (that corporation is the plaintiff-counter-defendant-appellant, hereafter referred to as the lessor), and the Meadows Mercantile Corp., as lessee (that corporation's name was subsequently changed to South Center Department Store, Inc., and is the defendant-counter-plaintiff-appellee hereafter referred to as the lessee).

The premises demised are described in the granting clause in five different ways:

(1) 'the premises known as 419-429 East 47th Street, Chicago, Illinois.'

(2) 'being the entire premises presently occupied and utilized by South-Center Department Store'

(3) 'consisting of three floors and basement space in the northeasterly part of the building located at the southeast corner of East 47th Street and South Parkway in Chicago, Illinois'

(4) 'having a frontage of about 144 feet on East 47th Street'

(5) 'which demised premises are more particularly shown on the plat thereof hereto attached marked 'Exhibit A'.'

It is obvious that description number 2-'being the entire premises presently occupied and utilized by South-Center Department Store,' is a description which is not self-determining, and can only be determined by taking extrinsic evidence. When the plat attached to the lease and made a part thereof is considered, the lease itself discloses certain inaccuracies and ambiguities in the granting clause.

As to the first description: 'the premises known as 419-429 East 47th Street, Chicago, Illinois,' the plats indicate that that is an accurate description as to first, second and third floors, but that it is inaccurate as to the space agreed by all parties to be demised by the lease as to the basement, in that the boiler room of the entire building would fall within that legal description in the basement, and is excluded from the demised premises by general agreement, and that there was additional space in the basement not covered by that legal description which, it is agreed by all, is part of the demised premises.

The third description, 'consisting of three floors and basement space in the northeasterly part of the building located at the southeast corner of East 47th Street and South Parkway in Chicago, Illinois,' has exactly the same discrepancies as the first description. The street address, 419-429 East 47th Street, is in the northeasterly part of the building, but the boiler room is also located in the northeasterly part of the building in the basement, and there is additional basement space which runs nearly to the northwesterly extreme part of the building, which is not in controversy. The first, second and third floors are in the northeasterly part of the building.

The fourth description, 'having a frontage of about 144 feet on East 47th Street,' has exactly the same discrepancy, when referred to the plat contained in the fifth description, as descriptions numbered 1 and 3: that is, the first, second and third floors have a space facing on 47th Street of about 144 feet, and the basement property on 47th Street is much greater than that.

The lessor objects to the introduction of extraneous evidence on the basis that it is not necessary in view of the fifth description of the premises in the granting clause, which refers to a plat.

The second description in the granting clause, 'being the entire premises presently occupied and utilized by South-Center Department Store,' is, in the main, in agreement with this description referring to the plats. It is agreed that the South-Center Department Store did not at that time occupy and utilize the boiler room, as shown on the plat of the basement, which boiler room was at the street address of 419-429 East 47th Street in the northeasterly part of the basement of the building located at the southeast corner of East 47th Street and South Parkway and was in the part of the space having a frontage of about 144 feet on East 47th Street. It is also agreed that the South-Center Department Store did occupy and utilize the space in the basement shown by the plat and marked 'Department Store': that is, a corridor running along 47th Street, and a storeroom west thereof, also fronting on 47th Street, and that these premises were not within the street address 419-429 East 47th Street; they were not in the northeasterly part of the building, and they were in excess of the frontage of 144 feet on East 47th Street. The right of the lessee to these premises is not in controversy. They are covered both by the second description and the plat.

It is clear that the ambiguities which exist in regard to the granting clause are latent, not patent. They are latent because additional information has to be determined to show the ambiguity. The street address description is perfectly clear until it is considered with certain other descriptions and the fact that certain premises were used or utilized by the department store and that certain premises were marked as being covered by the lease on the plats. The same is true of the location in the building description and the frontage on 47th Street description. The ambiguity is also discovered when evidence is taken as to what these various street addresses, parts of building and frontage on 47th street actually mean and what the plat shows and what the 'use' description means. The law in regard to this matter is clearly discussed in People ex rel. Beedy v. Regnier, 377 Ill. 562, 565, 37 N.E.2d 186, 188:

'A latent ambiguity occurs where a writing appears on its face clear and unambiguous, but which, in fact, is shown by extrinsic evidence to be uncertain in meaning, or where a decription apparently plain and unambiguous is shown to fit different pieces of property. In such case, the ambiguity being raised by extrinsic evidence, the same kind of evidence may be admitted to explain or identify the property referred to in the writing.'

It and certain rules of construction are also discussed in Allendorf v. Daily, 6 Ill.2d 577, 590-591, 129 N.E.2d 673, 680:

'A latent ambiguity occurs where a writing appears on its face clear and unambiguous, but which, in fact, is shown by extrinsic evidence to be uncertain in meaning; or where a description apparently plain and unambiguous is shown to fit different pieces of property, and in such cases, the ambiguity being raised by extrinsic evidence, the same kind of evidence may be admitted to explain it or identify the property referred to in the writing. Logue v. Von Almen, 379 Ill. 208, 40 N.E.2d 73, 140 A.L.R. 251; Weber v. Adler, 311 Ill. 547, 143 N.E. 95; Harman v. People ex rel. Munsterman, 214 Ill. 454, 73 N.E. 760. A latent ambiguity in a contract can be explained by parol evidence. Higinbotham v. Blair, 308 Ill. 568, 139 N.E. 909. In construing a written instrument the court may place itself in the parties' position to ascertain their intent from the language used. Gillett v. Teel, 272 Ill. 106, 111 N.E. 722; Close v. Browne, 230 Ill. 228, 82 N.E. 629, 13 L.R.A.,N.S., 634. Deeds should be construed most favorable to the grantee and the intention of the parties is the test by which to determine the effect of a deed, including the description therein. Brenneman v. Dillon, 296 Ill. 140, 129 N.E. 564; In re Estate of Frayser, 401 Ill. 364, 82 N.E.2d 633.'

It is therefore clear that the trial court did not err when it permitted evidence to be introduced showing the situation of the parties at the time the lease was executed, the use of the disputed storerooms before the execution of the lease and thereafter, or any other collateral matter which shed light upon the intention of the parties at the time the lease was executed.

There is practically no dispute in regard to the surrounding circumstances and facts relating to the execution of the lease and the use of the property. Prior to the execution of the lease a corporation known by the same name as the present name of the lessee, that is, South Center Department Store, operated a department store in the premises. It was affiliated with the lessor. Negotiations had been consummated for the sale of the mercantile business to the lessee, conditioned upon lessee obtaining a lease from the lessor for the premises involved.

The controversy relates to five storerooms on the westerly side of the building adjoining South Parkway. These storerooms are not indicated on the basement plat as being used by the department store or as being within certain red lines which indicated the premises covered by the lease. They all are entered off a separate corridor or from stairways leading to the space above them facing on South Parkway. At the time the lease was executed five of those storerooms were occupied and utilized by the South Center Department Store. Representatives of the lessee were shown that space and explanation made that it was being used by the South Center Department Store at that time. For about six days prior to the execution of the lease representatives of the lessee were constantly in the premises checking inventories and were in and out of these storerooms for that purpose. It is not disputed that for a period of time prior thereto those five storerooms had been occupied by the South Center Department...