Williams v. Superior Airways, 9746

• Decision Date: 13 November 1959
• Docket Number: No. 9746,9746
• Citation: 99 N.W.2d 224,99 N.W.2d 885,78 S.D. 148
• Parties: Blanche C. WILLIAMS, Plaintiff and Appellant, v. SUPERIOR AIRWAYS, a Corporation, Defendant and Respondent.
• Court: South Dakota Supreme Court

Page 224

99 N.W.2d 224

78 S.D. 148

Blanche C. WILLIAMS, Plaintiff and Appellant, v. SUPERIOR AIRWAYS, a Corporation, Defendant and Respondent.

No. 9746.

Supreme Court of South Dakota.

Nov. 13, 1959.

Rehearing Denied Dec. 22, 1959.

See 99 N.W.2d 885.

Gunderson, Farrar & Carrell, Rapid City, Melville C. Williams, Pope & Ballard, Chicago, Ill., for plaintiff and appellant.

Bangs, McCullen & Butler, Thomas H. Foye, Rapid City, for defendant and respondent.

BIEGELMEIER, Judge.

On August 1, 1948, plaintiff as owner of a tract of land in Pennington County entered into a written lease with defendant Superior Airways for a period of twenty years with an option for renewal of a like period; while the lease did not specify any use or purpose for which the property was rented, it contained the following clauses:

'Covenants Lessee covenants that it will not permit the sale of intoxicating liquors on the premises. Lessor and lessee agree that the leased premises are not to be used for agricultural purposes; however, lessee may cut the hay and grasses growing thereon.

'Buildings At the expiration or termination hereof, lessee shall have the right to remove all buildings and structures (except inclosing fences) subject only to the lien of lessor for any unpaid rent due hereunder. * * *

'Assignment Lessee shall have the right to sublet or assign this lease, but such assignment shall not affect lessee's liability for rental payments.'

It is undisputed that at the time the lease was executed the property had been and was being used for airport purposes; there was a flying school there and some buildings, a hangar--a 40 or 50-foot concrete block building, had been erected on it by former tenants. In 1952 a highway right of way for which plaintiff was paid $4,000 was put through the property under condemnation proceedings or threat of them; this rendered the property unusable for airport purposes; plaintiff knew this business had been closed and the property was being used for something other than airport purposes; thereafter defendant had an opportunity to sublease part of this property and as a result of some discussions plaintiff and defendant on January 25, 1956 executed an amendment to lease in the following terms:

'Whereas, it was the purpose and intent of the lessor, Blanche C. Williams, and the lessee, Superior Airways, Inc., in that certain lease dated August 1, 1948 and which was filed for record and recorded in the Office of the Register of Deeds of Pennington County, South Dakota, in Book 42 of Miscellaneous at page 240 that the lessee should have the right and privilege to erect building and structures on the premises described therein, to wit:

'The Southwest Quarter of Section 28 in Township 2 North of Range 8, East of the Black Hills Meridian, Pennington County, South Dakota paragraph Seven of said lease is amended to read as follows:

"Lessor grants and gives to the lessee the right and privilege to construct upon said premises such building and structures as it may desire during the term of this lease. This right and privilege shall extend to sublessees if granted to such sublessees by the lessee. The lessee on its part agrees to protect the lessor against any and all liens that may be filed against said premises by any contractor, material man, or workman resulting from the construction of any building and structure placed upon said premises by said lessee, his assignee or sublessee.

"At the expiration or termination hereof, lessee shall have the right to remove all buildings and structures (except inclosing fences) subject only to the lien of lessor for any unpaid rent due hereunder."

By letter of February 27, 1956 addressed to the Rushmore Mutual Life Insurance Company directed to the attention of Mr. Williamson, one of the defendant's attorneys and the person who negotiated for this amendment, notice was given that plaintiff revoked and rescinded such amendment 'for good and sufficient statutory reasons' and on April 29, 1957 plaintiff commenced this action. The complaint among other things alleged that plaintiff was old and infirm and not experienced in business matters and executed instruments offered her relying on the representations of defendant's agent; that the papers related wholly to removing of, and protecting her from further, liens on the property; that there was no consideration for the amendment and that she executed it through inadvertence, mistake and lack of experience and undue influence of the defendant's agent and prayed that the amendment be adjudged null and void and rescinded. Defendant's answer contained a prayer for a declaratory judgment, defining the rights of the parties under the lease and amendment.

The trial court entered its decision consisting of three findings of fact and two conclusions of law and upon these entered judgment that plaintiff take nothing by her complaint and that the defendant had the following rights among others:

'a. To assign or sublease the premises in whole or in part.

'b. To erect and construct by itself or through its assigns or sub-lessees any buildings or structures upon the leased premises together with a lawful use thereof with the right by itself or through its assigns or sub-lessees to remove such buildings or structures except inclosing fences upon termination or expiration of the lease and any lawful renewals thereof subject only to the lien of the Lessor for any unpaid rentals due thereunder;

'c. To utilize the premises for any lawful purpose except for the sale of intoxicating liquors or for agricultural purposes.'

Plaintiff appealed and in her brief states that only one of these findings is contested on this appeal and that is Finding No. 3 wherein the trial court found

'That there was no fraud or misrepresentation of any kind in connection with the procurement of the aforesaid amendment; that the plaintiff executed same in consideration of the mutual covenants contained therein and without inadvertence, mistake, undue influence, or other legal disabilities.'

At the trial plaintiff claimed that the lease is 'not clear and unambiguous but it has two ambiguities in it'; that these ambiguities existed as to the two clauses with reference to Buildings and Assignments set out above. Under this situation plaintiff testified that the future use of the property under the lease was that it was to be used and was used as an airfield until the highway went through in 1952; that she did not rely on any other statements made by the defendant's agent except as to certain liens that appeared on the abstract; that she read the amendment to lease before she signed it and apparently understood it; that she didn't object to buildings being put up before. Mr. Williamson, who was general counsel for Rushmore and who was given the abstract of the property to look at for defendant, was called by plaintiff as her witness. He testified the statement in the amendment that it was the purpose and intent of plaintiff and defendant in the 1948 lease that defendant should have the right and privilege to erect buildings and structures on the premises was prepared by him after he talked to plaintiff; that the reason the amendment was desired was they were dealing with a layman and he found out there was no provision in the lease itself for the construction of buildings and was not too certain of having a right to put them up and he was careful and wanted to be sure he had the right to do it; he talked to plaintiff about this and told her that there was some question in his mind whether this man would go through with it unless there was a specific provision in the contract to permit such construction.

Plaintiff has not argued assignments of error Nos. 15 and 16 which presented plaintiff's theories of undue influence and constructive fraud and these are...