Metzler v. Thye

MELVIN, J.

Defendant became the lessee of certain premises in the city of Los Angeles. During the term of his lease plaintiff bought the property and succeeded to all of the rights of the lessor. After the term of the lease and surrender of the premises by defendant this suit was brought for damages alleged to be due for injuries to the property beyond reasonable wear and tear and for the failure of defendant to install a certain sidewalk elevator, as provided by the terms of the written lease. The superior- court gave judgment in favor of defendant and plaintiff appeals therefrom. - There is no attack upon the finding that the lessee had not injured the premises beyond reasonable wear and tear, the only point of controversy here being with reference to the interpretation given by the trial court to the covenant in the lease respecting the sidewalk elevator. The appeal is upon the judgment-roll alone and as the court found that there xyas no agreement respecting the installation- of the. elevator except that expressed in the lease, we must construe that in *97 strument in the light of this finding. In his answer defendant admitted that no elevator had been put in position but pleaded as an excuse for his failure to comply with the requirement of the lease in that regard that, although he was ready at all times during the term of his tenancy to fulfill his obligation, plaintiff had prevented him from so doing by neglecting to prepare the premises for the reception of the elevator. The requirement of the contract of lease was that defendant within six months from the first of November, 1905, should “install a sidewalk elevator from the basement to the sidewalk in front of said premises.” The court found that neither plaintiff nor his predecessor in interest prepared or offered to prepare the premises for the reception of an elevator, and that “before said elevator .‘could be installed it would have been necessary to make certain changes in the building on said premises, to remove a part of the foundation wall under said building, to excavate under the sidewalk and build a wall around such excavation and an arch over the portion of said foundation wall to be removed as aforesaid, in order to prepare a place for the installation of said elevator; and that it would have been further necessary to place trap doors in said sidewalk.” It will thus be seen that the whole controversy turns upon the meaning of the word “in-stall.” Appellant insists that since all things necessary to carry a contract into effect are implied therefrom (Civ. Code, sec. 1656) and since the contract is to be “interpreted most strongly against the promisor,” in cases of uncertainty (Civ. Code, sec. 1654), therefore this court, as matter of construction should give to the word “install” a force including all things necessary to the carrying out of defendant’s promise. The words “install” and “installation” when applied to machinery have a technical meaning and should be interpreted accordingly. (Civ. Code, sec. 1645.) Webster’s New Standard Dictionary gives these definitions: “Install—to set up or fix in position for use or service; as to install a heating or lighting system.” “Installation—the whole of a system of machines, apparatus and accessories set up and arranged for working, as in electric lighting, transmission of power, etc.” Other lexicons define these words quite similarly. When, therefore, defendant agreed to install an elevator “from the basement to the sidewalk in front of said premises” he meant *98 that he would provide a suitable lift, with the usual accessories connecting the basement of the building which he occupied as tenant, with the sidewalk in front of it. We see no room for an interpretation imposing upon appellant the duty of preparation of the premises. If a tenant under a lease of a farm should agree to sow a crop, the contract would scarcely be interpreted to mean that the landlord should plow the land, and buy the seed, leaving the promisor only the duty of spreading it. The implication in the contract before us, though perhaps not quite so strong, is as clear as that which would arise in the one cited by way of illustration. Words expressing a promise to build an improvement do not, as a rule, indicate the intent of the parties to the contract that a mere structure should be erected, but that the improvement should be adapted to the use to which it is generally applied. For example, where'a railroad company promised to “erect” a station, the covenant was held to be one imposing upon the corporation the duty of building and establishing a regular station.

(Port Huron & Northwestern Ry. Co.

v. Richards, 90 Mich. 577 , [ 51 N. W. 680 ].) It is true that the context in the case just cited was somewhat more illuminating of the meaning of the word “erect” as used in the agreement there considered, than are the other portions of the contract before us, as indicating the exact meaning of the word “install” intended by the parties thereto. But we believe that the principle announced in the Michigan case is entirely applicable here.

The fact that compliance with his contract would involve greater expense than he anticipated would not excuse defendant. Parties sui juris cannot escape performance of their undertakings because of unforeseen hardship.

(Johnson v. Bryant, 61 Ark. 315 , [ 32 S. W. 1080 ].) Where one contracts to furnish capital, a financial panic does not excuse performance.

(McCreery v. Green, 38 Mich. 172 . See, also, 2 Parsons, on Contracts, 9th ed., 826; 3 Page on Contracts, paragraph 1378; 1 Beach on Contracts, paragraph 216.)

The lease here considered provided that no alterations in the premises might be made without permission of the lessor, and the court found that plaintiff never granted leave to defendant to make the changes which would be necessary and incidental to putting in an elevator; but the failure of plain *99 tiff to grant such, permission would not be a good defense. The general covenant in the lease with reference to alterations would, of course, be subject to and modified by the special agreement regarding the installation of the elevator.

The judgment is reversed.

Henshaw, J., Lorigan, J., Shaw, J., Angellotti, J., and Sloss, J. concurred.