Thompson v. Coe

• Citation: 96 Conn. 644,115 A. 219
• Court: Supreme Court of Connecticut
• Decision Date: 28 October 1921
• Parties: THOMPSON v. COE.

115 A. 219

96 Conn. 644

THOMPSON v. COE.

Supreme Court of Errors of Connecticut.

October 28, 1921

Appeal from Superior Court, New Haven County; James H. Webb, Judge.

Action by Frank W. Thompson against Mary F. Coe for specific performance. Judgment for plaintiff, and defendant appeals. No error.

The defendant leased 378 Elm street, New Haven, to plaintiff for two years from May 1, 1917. A provision of the lease was as follows:

" Provided, however, and it is further agreed, that if the said rent shall remain unpaid 15 days after the same shall become payable as aforesaid, or if the said party of the second part shall not perform and fulfill each and every of the covenants herein contained to be performed by said party of the second part, then this lease shall thereupon, by virtue of this express stipulation therein, expire and terminate, and whenever this lease shall so, or by lapse of time, expire and terminate, then the party of the first part may at any time thereafter re-enter said premises, and the same have and possess as of her former estate, and without such re-entry may recover possession thereof in the manner prescribed by the statute relating to summary process; it being understood that no demand for the rent, and no re-entry for condition broken, as at common law and no notice to quit possession as prescribed by said statute, shall be necessary to enable the lessor to recover such possession pursuant to said statute relating to summary process, but that all right to any such demand and any such re-entry, and any such notice to quit possession, is hereby expressly waived by the said party of the second part."

And it was further stipulated and agreed in the lease:

" That the party of the second part" (plaintiff) " shall have the right to purchase said property at any time during the term of this lease for the sum of $5,500, and the party of the first part (defendant) agrees not to sell the property during these two years to any other person except the party of the second part."

On March 7, 1918, in consequence of differences that had arisen the parties entered into another agreement relating to the premises leased, in which it was provided " that nothing herein contained shall be construed to change or affect said lease."

Subsequently on May 5, 1919, the defendant leased the premises to the plaintiff for one year from May 1, 1919. This lease contained the same provision with reference to the nonpayment of rent as the first lease and also contained an option to purchase similar to that of the earlier lease, in terms as follows:

" And it is further stipulated and agreed that the party of the second part shall have the right to purchase said property at any time during the term of this lease for the sum of $5,500, and the party of the first part agrees not to sell said property during said one year to any other person except the party of the second part during his possession of same."

The plaintiff had been accustomed, with the acquiescence of the defendant, to transmit the rent each month by check or post office order to defendant, and on March 13, 1920, he sent by mail $30 in bills to defendant in payment of one month's rent, under the following circumstances:

" In pursuance of this practice and custom of paying the rent, the plaintiff, on the 13th day of March, 1920, about 8 o'clock in the evening, repaired to the post office in New Haven with the intention of procuring a money order which he had frequently used in transmitting the rent before; but it was a stormy night, and the plaintiff, being partially sick with a heavy cold, was anxious to get home as soon as possible, and finding a long line of applicants waiting at the money order window and that he would have to wait in all probability for a very long time, and being anxious to get home to West Haven, some four or five miles, he placed three bills of United States currency amounting to $30 in an envelope marked with a return card on the corner of it and directed as usual to the defendant in West Haven, town of Orange, and believed in good faith that the defendant would receive the same within the time limited for the payment of the rent, as provided for in the lease, Exhibit A. These bills so mailed by the plaintiff, as aforesaid, were never received by the defendant."

Defendant's attorney told plaintiff on March 25, 1920, that the defendant had not received her rent for March, and plaintiff informed him he had sent it by mail and if defendant had not received it he would pay it over again and requested him to inquire of defendant and inform him if she had not received it. The plaintiff on March 25th received by mail a demand from defendant's attorney for the March rent. By reason of what had occurred between plaintiff and defendant's attorney, plaintiff did nothing further until on or about April 9th, when he received another letter from defendant's attorney, stating that-

" Mrs. Coe informs us that she has never received the rent due her from you for the month of March, and at her request we have had a notice to quit served upon you. May we not hear from you in the next two or three days concerning when you expect to vacate the premises?"

About the same time he received the following:

" Notice to Quit.

" Mr. Frank W. Thompson: I hereby give you notice to quit possession of the house, land, buildings, apartments and premises, now occupied by you at number 378 Elm street, in the town of Orange, state of Connecticut, on or before the 13th day of April, 1920.

" Dated at West Haven, Conn., this 7th day of April, 1920.

" Mary F. Coe,

" By Clark, Hall & Peck,

" Her Attorneys."

Plaintiff thereupon went to the attorney's office and tendered him $30 in payment of the rent for March, but the attorney upon consulting defendant informed plaintiff that defendant refused to take the money for the March rent. April 12, 1920, plaintiff tendered defendant $60, for rent for March and April, which defendant refused, and later on the same day the plaintiff tendered to the defendant $30 as the rent for April, 1920, which the defendant also refused. Defendant did not on or after March 1, 1920, at a convenient hour before sunset make any demand on the premises for the rent due on the last day it fell due, nor at any time make any entry upon the premises for condition broken. The premises have increased in value and are worth $8,500.

On April 16, 1920, defendant prayed out a summary process and caused the same to be served upon the plaintiff.

On April 23, 1920, plaintiff tendered to defendant $5,500 and demanded the execution of a deed of the said premises; and the plaintiff has since remained ready and willing to pay this sum, together with the $60 rent. On May 12th this summary process action was withdrawn. On April 24, 1920, the plaintiff began this action. Defendant began another summary process action on May 14th, counting on the lease dated May 5, 1919. A judgment was rendered in the action against the plaintiff. Defendant has remained at all times since April 23, 1920, constant in her claim that the plaintiff had forfeited all right under the lease and agreement by not having paid the rent within 15 days from the day when the same became due.

Charles J. Martin and Frank R. Goldman, both of New Haven, for appellant.

Charles S. Hamilton, of New Haven, for appellee.

GAGER J.

This case turns primarily on the answers to the questions whether the plaintiff exercised his option to purchase within the time provided by the contract, and whether the plaintiff had upon the facts any equitable right to the exercise of his option in case he did not do it technically within the term of the contract.

The plaintiff claims that the time within which he could exercise the option, without regard to the forfeiture provision of the lease, did not expire until the expiration of the year for which the lease was originally given. Whether the option to purchase contained in a lease is an independent agreement, or in connection with the lease forms one entire agreement, depends upon the intention of the parties, and this is to be resolved by the construction of the instrument read in the light of its circumstances. The instrument before us has a common and indivisible consideration. All of its parts are inseparably connected. Were the option to purchase clause detached from the rest of the instrument it would be wholly nugatory as an executory contract. Underhill on Landlord and Tenant, vol. 2, p. 979. Since this is the true construction of this instrument it must result that when the lease falls the option to purchase goes with it. The parties to the lease cannot be presumed to have intended otherwise. No owner of premises would understandingly agree that a lessee should have the privilege of purchasing the premises during the term of a lease long after the lease had been forfeited. An agreement of that character would incumber the premises and in all likelihood prevent a sale or lease or the making of improvements upon the owner's own premises.

James on Option Contracts, § 852, states the rule to be:

" Where the option gives the lessee the right to purchase at any time during the continuance or term of the lease, the right must be exercised during the life of the lease."

Consequently an election made after the expiration of the term is not in time.

The plaintiff on April 23, 1920, exercised his right to purchase the premises leased by making a tender of the purchase price named in the lease and by demanding the execution of a deed of the premises. The defendant maintains that the lease was at this time terminated. Unless it were so terminated the plaintiff was entitled to a conveyance of the premises.

From the statement of facts it appears that...