Opinion
January 17, 1908.
Samuel M. Richardson, for the appellant.
Claude V. Pallister, for the respondent.
The renewal of the lease embraced all of the covenants and agreements of the lease, except that of renewal, for otherwise the right of renewal would be perpetual. The clause in the lease by which the lessor agrees to sell the demised premises to the tenant for $10,500 was therefore renewed. But such clause does not provide the same in terms for the renewed year as for the first year, as you perceive on perusing it. It gives the tenant the option to purchase at any time during the first year, but this option is restricted and may be put an end to during the second year. The option of purchase continues during the second year, it is true, but with the modification, that if instead of purchasing during the first year, the tenant gives the required notice of sixty days before the expiration of the first year, of a renewal of the lease for another year, and should the lessor or her husband "die during said sixty days before expiration of the term herein granted", then she or her executors "may, upon obtaining a bona fide purchaser for the said premises, sell the same after having first given party of the second part" ( i.e., the tenant) "the opportunity to purchase them at the price offered by such bona fide purchaser." The phrase "die during said sixty days before expiration of the term herein granted", contemplates that such notice of sixty days shall be or run during the last sixty days, i.e., the sixty days before the expiration of the term, and thus understood becomes entirely plain. It simply means that if the lessor or her husband die during the last sixty days of the term, and the word "said" is meaningless.
The effect of this is that the tenant may at any time during the renewed year exercise the option of purchase for $10,500, except that if the lessor or her husband has died during the last sixty days of the first year, she or her executors may, at any time before the tenant has exercised such option, sell the property, but not until the offer therefor has been first submitted to the tenant, and she has been given opportunity to purchase it at that price. In this way the option of purchase given her in the lease may be brought to an end. This being the interpretation of the clause giving the option to purchase, there is no occasion to try to change "and" to "or" in the phrase "and should the party of the first part or her husband die", etc. The said purchase clause has a clear meaning as it reads with the word "and", and would have the same meaning if we changed "and" to "or"; which is at once perceived if the tenant's option to purchase continues during the second year until it is ended by the lessor submitting to the tenant an offer from another purchaser and selling to him if the tenant will not take the property and pay the amount of his offer. If we were to change the reading to be that if the tenant serve the notice of sixty days for a renewal, "or" the lessor or her husband die during such sixty days, the lessor or her executors shall have a right to end the tenant's option by getting a purchaser, and requiring the tenant to take the property at his offer, we would have the same case, i.e., that the tenant — the plaintiff — exercised the option given her by the lease to purchase before the lessor received an offer from any one else.
As the lessor never submitted an offer from any other purchaser to the tenant, she exercised the option to purchase at $10,500 in time.
The judgment should be reversed.
JENKS, HOOKER, RICH and MILLER, JJ., concurred.
Judgment reversed on the law and facts, and new trial granted, costs to abide the final award of costs.