Opinion
October 15, 1929.
October 30, 1929.
Practice — Assumpsit — Rent — Taxes — Lease — Judgment for want of a sufficient affidavit of defense.
In an action of assumpsit for rent the lease provided that the lessee should pay one-twelfth of all the taxes assessed or imposed on the premises during the term of the lease, in excess of the assessment of record as a completed building. Subsequent to the making of the lease, the assessed valuation of the property for the purpose of taxation, and the tax rate, were increased. The lessee admitted liability for one-twelfth of the increased taxation due to the increased tax rate, but denied liability for anything in excess thereof due to increased assessed valuation. Under such circumstances a judgment for want of a sufficient affidavit of defense will be affirmed.
The phrases "taxes assessed" and "assessment of record" in the lease in suit were used to mean the same thing and referred to the amount of the taxes assessed, and not to the assessment in the sense merely of the appraisement or the valuation of the property.
Appeal No. 236, October T., 1929, by defendant from judgment of C.P., No. 2, Philadelphia County, March T., 1929, No. 6494, in the case of Roy A. Heymann and Albert K. Arnold, trading as Heyman Bro., Agents, v. Henry C. Nuss.
Before PORTER, P.J., TREXLER, KELLER, LINN, GAWTHROP, CUNNINGHAM and BALDRIGE, JJ. Affirmed.
Assumpsit on a lease. Before STERN, J.
The facts are stated in the following opinion of the court below:
This is a rule for judgment for want of a sufficient affidavit of defense. The sole question is as to the proper construction of the lease entered into between the parties.
The lease was on a printed form and as printed contained a clause as follows:
"Lessee further agrees to pay as additional rent ...... all taxes assessed or imposed upon the demised premises and/or the building of which the demised premises are a part during the term of this lease, in excess of and over and above ...... dollars per annum. The amount due hereunder on account of such taxes shall be apportioned for the first and last calendar years of lessee's occupancy. The same shall be paid by lessee to lessor on or before the first day of August of each and every year."
Only the first sentence of this clause is involved in the present controversy. It will be seen that the printed blank provided for two insertions, one for the proportion of the excess taxes which the lessee was to agree to pay, and the other for the base or minimum on which the excess was to be calculated. In the present case, the blanks were filled in in type writing, so that the first sentence of the clause reads as follows:
"Lessee further agrees to pay as additional rent one-twelfth all taxes assessed or imposed upon the demised premises and/or the building of which the demised premises are a part during the term of this lease, in excess of and over and above assessment of record as a completed bldg. Dollars per annum."
It is obvious that the last three words, "Dollars per annum," have no relevancy, the parties merely neglecting to cross them out, and they admittedly are to be disregarded entirely. If we also omit the tautological phrase "and over and above," we shall have the clause which we are to consider read as follows:
"Lessee further agrees to pay as additional rent one-twelfth (of) all taxes assessed or imposed upon the demised premises and/or the building of which the demised premises are a part during the term of this lease, in excess of assessment of record as a completed bldg."
Under this clause, it is the contention of the plaintiff lessors that the defendant should pay one-twelfth of the increase of taxes over the taxes assessed against the property in the year when the building was first completed. On the other hand, it is the contention of the defendant lessee that he should pay one-twelfth of the said increase of taxes only in so far as said increase resulted from an increase in the rate of taxation and not from an increase in the valuation or appraisement of the building.
It appears from the admitted facts set forth in the pleadings that, when the lease was made, the erection of the building had not been begun, but that such erection was begun shortly after the execution of the lease and was completed at the end of 1926. For the year 1927, the first year when the property was assessed as a completed building, the premises were valued for the purpose of taxation at $1,200,000. The tax rate was 2.65 per one hundred dollars, making the taxes for the year 1927 amount to $31,800. For the year 1928, which is the year in question, the valuation for the purpose of taxation was raised to $1,600,000, and the rate was increased to 2.85 per one hundred dollars, making the taxes for the year 1928 on said building $45,600. Plaintiffs contend that the defendant is liable for one-twelfth of the excess of $45,600 over $31,800, or $1,150, and this suit is for said sum of $1,150, as additional rent under the lease for the year 1928. The defendant contends, on the other hand, that he is liable for one-twelfth of the increase of the 1928 over the 1927 taxes only in so far as such increase arises from the increased rate of twenty cents per one hundred dollars based upon the 1927 valuation of $1,200,000. By this calculation the defendant would be liable only for one-twelfth of $2,400 or $200, which the defendant has tendered to the plaintiffs in full satisfaction of his obligation under the increase of taxes clause in the lease for the year 1928.
The court is unable to approve or indeed to understand the defendant's contention. In the opinion of the court there is nothing in the clause under consideration to justify an inference that the only increase to be paid by the lessee was that arising from the increase in the rate of taxation. Indeed, whatever ambiguity may be said to exist in the clause would seem rather to result from a possible contention that the only increase to be paid by the lessee was to be, not that occasioned by an increase in the rate, but by an increase in the assessed valuation of the property. In other words, it might perhaps be contended by the defendant that, when the clause said that the lessee was to pay one-twelfth of all taxes in excess of the "assessment of record" as a completed building, the word "assessment" referred to the valuation placed upon the building by the appraisers, and that therefore the only increase in contemplation was that in reference to such assessed valuation and not any increase based upon a change of rate of taxation.
Although the defendant apparently does not raise that question the court has considered it, and has come to the conclusion that the clause imposes upon the lessee the obligation to pay the agreed upon proportion of the total increase of taxes, no matter whether said increase results from a change in the appraisement or from an increase in the rate or from both. The court has arrived at this conclusion because it believes that the words "assessment of record" refer to the assessment of the taxes and not to the assessment in the sense merely of the appraisement or valuation of the property. It is true that popularly the phrase "assessment" often is used to designate the appraisement or valuation, but in the present case it is believed that the word "assessment" refers to the assessment of the taxes as an entirety. This is so because in the beginning of the clause there is the phrase "one-twelfth (of) all taxes assessed or imposed," etc., showing that the draughtsman used the word "assessed" in reference to the taxes and not to the appraisement. And it is quite an elementary principle of construction that where a word is used in a document in one sense it is to be presumed that in any further use of the word the same sense is intended unless some contrary meaning is expressed or indicated. Furthermore, if the words "assessment of record" referred to the appraisement or valuation, the clause would not make any sense, as can be seen by substituting the actual figures for the year 1928 in the clause itself. Considering it in that fashion the clause would read: "Lessee further agrees to pay as additional rent one-twelfth of $45,600 in excess of $1,200," the former figure being the amount of the taxes "assessed or imposed" for the year 1928, and the latter figures the assessment of record as a completed building.
In short, it is quite clear from every viewpoint that by the phrase "assessment of record as a completed building" is meant the actual amount of the taxes for that year, to wit, 1927, and that the lessee was to pay all taxes for each subsequent year in excess of that amount. It is the conclusion of the court that it is the obligation of the lessee under the present lease to pay for each year one-twelfth of the taxes for that year assessed against the property in excess of the amount of taxes so assessed in the year 1927. This conclusion would also seem to be in accord with the intention of the parties as commonly manifested in such transactions in the real estate world.
The court therefore makes the rule absolute, and gives judgment in favor of the plaintiffs and against the defendant in the sum of $1,150, with interest from the first day of August, 1928, the exact amount to be computed by the prothonotary.
Rule for judgment for want of a sufficient affidavit of defense.
The court made absolute the rule. Defendant appealed.
Error assigned was the order of the court.
George J. Edwards, Jr., for appellant.
Samuel A. Goldberg, of Wolf, Block, Schorr and Solis-Cohn, for appellees.
Argued October 15, 1929.
The judgment is affirmed on the opinion of Judge STERN of the court of common pleas of Philadelphia County.