Opinion
No. 28688.
July 14, 1953. Motion for Rehearing or for Modification of Opinion Denied September 11, 1953.
APPEAL FROM THE CIRCUIT COURT, CITY OF ST. LOUIS, WILLIAM H. KILLOREN, J.
Mattingly, Boas Richards and Lloyd E. Boas, St. Louis, for appellant.
G. A. Buder, Jr., and Richard O. Roberts, St. Louis, for respondent.
This is an action brought by Pontiac Realty Company, a corporation, as plaintiff, against the Transit Casualty Company, a corporation, as defendant, to recover rents alleged to be due to plaintiff as lessor from defendant as lessee of certain portions of the Buder Building located in the City of St. Louis. The case was tried to the court without a jury. Said trial resulted in a finding and judgment in favor of plaintiff for the sum of $5,200, together with costs. From said judgment, defendant has appealed.
The lease in question was executed on February 21, 1946, and provided:
"1. * * * That the Lessor does hereby lease to the Lessee and the Lessee does hereby hire and take from the Lessor the premises known and designated as Rooms 801 to 828 inclusive, on the eighth floor of the Buder Building, situated in City Block No. 184 at the Northwest corner of Seventh and Market Streets, Saint Louis, Missouri, to be used and occupied as offices, but for no other purpose.
"2. For a term beginning June 1, 1946, and ending at midnight of May 31, 1956.
"3. For a total rent of One Hundred Twenty Thousand and no/100 dollars ($120,000.00) payable to the Lessor at the office of the Lessor's agent or manager, as follows: in equal monthly installments of One Thousand and no/100 Dollars ($1,000.00) in advance on the first business day of each calendar month throughout said term, * * *. Each and every installment of rent, accruing under the provisions of this lease, shall bear interest at the rate of six (6) per cent per annum from the date the same shall respectively become payable under the terms of this lease, until the same shall be paid.
* * * * * *
"14. If, for any reason, the premises herein demised shall not be ready for occupancy by Lessee at the beginning of the term hereof, no rent shall be paid for or during such period of unreadiness, but shall begin when the Lessor shall notify the Lessee that the demised premises are ready for occupancy, and shall be apportioned accordingly; in consideration whereof the Lessee hereby waives all claims for damages arising out of such delay.
"15. No alteration or waiver of any provision of this lease shall be of any force or effect unless the same shall be in writing endorsed hereon or attached hereto and executed by the Lessor or by the Lessor's agent duly authorized by the Lessor in writing.
* * * * * *
"Lessee shall have the right to cancel this lease at any time after five years have elapsed by giving the Lessor two (2) months' written notice and paying the unamortized portion of the alteration cost, such cost not to exceed $1,500.00 per year for the unexpired term of this lease. It is understood that the alteration cost will be amortized at the rate of ten per cent (10%) per year.
"Lessor shall, at its expense, make alterations to said premises in accordance with the plans and specifications hereto attached and made a part of this agreement."
On March 28, 1946, a rider was attached to said lease, which rider is in words and figures as follows, to wit:
"It is hereby understood by and between Lessor and Lessee that this lease is expressly made subject to the terms and conditions of a certain letter dated March 28, 1946, from Pontiac Realty Company to the Transit Casualty Company hereto attached, which letter by this reference is hereby made a part of this lease with like tenor and effect as if actually written herein as a part hereof."
The letter dated March 28, 1946, referred to in said attached rider to the original lease, was prepared by the lessor and agreed to by the lessee after it appeared that on account of certain government regulations restricting the use of building materials the lessor would be unable to make the alterations called for in said lease by June 1, 1946. In said agreement it was provided that certain alterations were abandoned and others postponed until materials were available. Said agreement further provided:
"3. Beginning June 1, 1946, and until the completion of alterations as mentioned in the preceding paragraph, numbered two, the Lessor leases and the Lessee hires and takes from the Lessor Rooms 814 to 828, both inclusive, on the eighth floor of the Buder Building, in addition to Rooms 801 to 813 presently occupied by Lessee, and the monthly rental for the entire space, Rooms 801 to 828, both inclusive, shall be $832.04 payable in advance on the first day of each and every month until the completion of the alterations herein mentioned.
"4. Upon completion of the alterations hereinbefore mentioned the rental stipulated and provided in said afore mentioned lease dated February 21, 1946, shall immediately become effective and payable and the terms of said lease in that and other respects shall continue for a period of ten years thereafter, subject only to the provisions of the cancellation clause appearing in said lease."
At the trial, the parties stipulated the following facts:
"(1) Defendant occupied Rooms Nos. 801 to 813 in the Buder Building prior to May, 1946, at a monthly rental of $400.00. Defendant occupied Rooms 801 to 813, and No. 828 in the Buder Building during the months of May and June, 1946, and paid rent therefor at the rate of $418.00 per month.
"(2) On a date after June 1, 1946, but before July 1, 1946, defendant entered into occupancy of Rooms 801 to 828 inclusive, in the Buder Building, and remained in occupancy until July 15, 1951. Defendant paid rent for said premises at the rate of $832.04 per month from July 1, 1946, to December 31, 1946.
"(3) Defendant paid rent for said premises at the rate of $1,000.00 per month from January 1, 1947, to July 31, 1951.
"(4) During the period of defendant's occupancy of rooms 801 to 828 in the Buder Building between July 1, 1946 and December 31, 1946, plaintiff proceeded to make the alterations required to be made by the terms of the lease of February 21, 1946, as modified by letter of March 28, 1946. The cost of such alterations was $18,989.71, which amount was paid by plaintiff.
"(5) There was no agreement executed between plaintiff and defendant after February 21, 1946, except the lease and the amendment of March 28, 1946."
On June 1, 1951, defendant notified plaintiff in writing that it was exercising its right to cancel the lease, and that said cancellation was to be effective August 1, 1951. This written notice further advised the plaintiff that defendant would pay the amortized portion of the alteration cost to be determined as provided in the lease. Thereafter, and on June 29, 1951, defendant served another notice of cancellation on plaintiff which, after referring to the previous notice, recited:
"In recent conversations between your Vice-President, Mr. G. A. Buder, Jr., and our counsel, some question was raised by Mr. Buder as to the sufficiency of the notice. We are confident that the notice which has been given you is sufficient and according to the terms of the aforesaid lease. However, without abandoning the notice heretofore given or admitting or conceding that such notice is ineffective, we hereby give further notice that if for any reason the said notice of June 1, 1951, was ineffective to terminate the lease, according to its terms, on August 1, 1951, we are cancelling the lease in any event not later than August 31, 1951."
After serving the first notice of cancellation, and prior to June 14, 1951, defendant paid to, and plaintiff accepted, without prejudice to any of its rights under the provisions of said lease, the sum of $8,125, the unamortized costs of the alterations made by plaintiff, computed for the period from August 1, 1951, to December 13, 1956, at the rate of $1500 per year. this sum was accepted by plaintiff with an agreement in writing which provided that, if, in any subsequent litigation, plaintiff should be held entitled to recover a larger sum, the amount paid should be credited to defendant's total obligation.
Defendant refused to pay rent for the months or August, September, October, November and December, 1951, and this suit was filed to recover said rent.
Plaintiff's theory of the case, advanced in the trial court and in this court on appeal, is that, by reason of the amendment dated March 28, 1946, the lease began January 1, 1947, the date on which defendant began to pay $1,000 per month rent after the completion of the alterations provided for in said lease, instead of June 1, 1946, the original date of the lease; and, since the lease according to its terms could not be canceled by defendant until it had been in effect for five years, the defendant's cancellation as of August 1, 1951, was premature by five full months.
Defendant contends that, by the express provisions of the instrument in question, the term of the lease commenced on June, 1, 1946, and that the cancellation by defendant on August 1, 1951, was proper and in compliance with said lease.
As heretofore stated, the trial judge found for plaintiff and, at said time, filed a memorandum in which he stated that "the court is of the opinion that the supplemental agreement of March 28, 1946, created a new tenancy, thereby postponing the effective date of the lease entered into as of the 21st day of February, 1946; that the ten-year period of tenancy, as provided in the lease of February 21, 1946, commenced on the 1st day of January, 1947, and that the notice of cancellation of said lease given by defendant was not effective to terminate the lease entered into as of the 21st day of February, 1946, until the 31st day of December, 1951."
Our problem in construing the two instruments in question in this case is to ascertain and give effect, if possible, to the mutual intention of the parties. That intention is to be gathered from the words used and considered in connection with the object and purpose sought to be accomplished, and the surrounding circumstances. Such intention is to be found from an examination of the whole of both instruments, rather than from a single clause in either. Missouri Athletic Ass'n v. Delk Inv. Corpn., 323 Mo. 765, 20 S.W.2d 51; Ritchie v. State Board of Agriculture, 219 Mo.App. 90, 266 S.W. 492.
By the provisions of the original lease plaintiff was required to make certain alterations of the demised premises according to plans and specifications attached to said lease. Thereafter, it appeared that, by reason of governmental orders and regulations restricting the use of building materials, plaintiff was unable to perform this agreement by June 1, 1946, the date expressly fixed by the lease as the beginning of the tenancy. By paragraph fourteen of said lease it was provided that if the premises were not ready for occupancy at the beginning of the term, no rent should be paid during the period of unreadiness. Plaintiff was thus faced with the possibility of the loss of rent for a considerable period of time. Confronted with this situation, it was considered desirable by both parties, no doubt, to effect an amendment of the lease. This was accomplished by the letter of March 28, 1946, written by plaintiff to defendant. In the introductory paragraph of said letter, after stating that governmental regulations prevented the alterations called for, it was then stated: "said lease is by mutual consent hereby altered and amended in the following respects." (Emphasis ours)
In the next two paragraphs, numbered one and two, in said letter, plaintiff was relieved of the duty of making certain specified alterations and was given more time to complete others. Paragraph three then provided for a monthly rental of $832.04 for the entire space to be occupied until the completion of the alterations.
It is apparent from the terms of said letter, and the surrounding circumstances, that the sole purpose intended by said letter of March 28, 1946, was to relieve the plaintiff of the duty of making certain alterations, to give it additional time to make other alterations, and to reduce the rent for defendant during the time necessary to make said alterations. To accomplish this result, did the parties intend to postpone the tenancy under the original lease and to effect an interim lease for a term beginning June 1, 1946, to end upon completion of said alterations? To determine this question, paragraph four of said letter becomes important. By said paragraph it was provided that, upon completion of the alterations, the rental stipulated for in the lease "shall immediately become effective and payable and the terms of said lease in that and other respects shall continue for a period of ten years thereafter, subject only to the provisions of the cancellation clause appearing in said lease." (Emphasis ours). Note that it was the rental provision that was to become "immediately" effective upon completion of said alterations; not are there express words postponing the tenancy under the original lease.
It is reasonable to suppose that if the parties intended to effect an interim lease from June 1, 1946, pending completion of the alterations, and to postpone the effective date of the lease in all its terms, they would have done so in express language, or, at least, they would have stipulated that all terms of the lease would "immediately" become effective upon completion of the alterations. Not having done so, and by providing that the lease in all "other respects shall continue" for a period of ten years, it is apparent the parties contemplated that defendant would enter the premises under the lease on June 1, 1946, and that all the terms of that lease should be operative as of that date, except those eliminated or modified by the letter of March 28, 1946. It is also apparent that the parties intended to enlarge the term of defendant's tenancy beyond the ten years originally granted.
In Webster's New International Dictionary (2nd Ed.), the word "continue" is defined to mean: "2. To protract or extend in duration; to persevere or persist in; to cease not; as, to continue loving kindness. 3. To carry onward or extend; to prolong; to add to or draw out in length, duration, or development; specif., to resume or carry on (discourse), esp. after intermission. 4. Specif., of a trial or other legal proceeding, to keep on the calendar or subject to further consideration. 5. To retain; to suffer or cause to remain; as, the trustees were continued; also, Obs., to suffer to live; keep alive."
One of the provisions of the lease which was continued unchanged was the one dealing with cancellation. It gave the lessee the right to cancel at any time after five years had lapsed, which clearly meant five years after the effective date of the lease, June 1, 1946, the beginning of defendant's tenancy. The reference to the cancellation clause in paragraph four of the letter of March 28, 1946, did not indicate an intent to postpone lessee's right to cancel, but indicated an intent to preserve unchanged said right.
Our conclusion is that the trial court erred in its holding. The judgment is therefore reversed.
BENNICK, P. J., and ARONSON, Special Judge, concur.