Smith v. Blake

Strout, J.

On the twenty-third day of August, 1892, plaintiffs leased defendant certain wharf property, for seven years, "yielding and paying therefor the rent of twenty-seven hundred dollars per annum.” " And the said lessee do so covenant to pay the said rent in equal quarterly payments, as follows, six hundred and twenty-five dollars on the twenty-third day of each November, February, May and. August during the whole of said term.” Aiid in the reddendum the lessors are given the right "to expel the lessee if he shall fail to pay the rent afore said.” And in the fire clause, it was provided that in case of loss or damage, by fire, " the rent hereinbefore reserved” shall be abated or suspended until the premises should be restored. The question is, whether the rent under the lease is twenty- *246 seven hundred dollars yearly, or twenty-five hundred dollars, the amount of four quarterly payments of six hundred and twenty-five dollars each.

The meaning and construction of written contracts is to be ascertained from the language used. Parol testimony may be admitted to explain a latent ambiguity, but not one patent upon the terms of the-contract. So the circumstances in which the parties, were placed at the time of making the contract, and collateral facts surrounding it, may be shown. 1 Greenl. Ev. § 297. Mere inaccuracy of language does not constitute an ambiguity of either class. In such cases parol evidence is inadmissible to show the intention of the parties. The language of this lease is explicit, and the question in issue cannot be determined from parol evidence of what was said and done at the time, of the contract, but must be ascertained from the lease itself.

In a letting for a series of years, the leading idea as to rent, is the yearly rental. Its subdivision into frequent payments is a matter of mathematics, and a secondary subject of thought. It is common knowledge that iin the great majority of leases, and in negotiations for ithem, the rent stated and talked about is the yearly rent. In .thiis lease the grant is made, "yielding and paying therefor the rent of twenty-seven hundred dollars per annum.” The gross yearly sum was clearly in the minds of the parties and clearly stated. The tenant’s covenant was " to pay the said rent in equal quarterly payments.” And the covenant would have been complete if ¡it had stopped there. And in that case, no doubt could have existed that the rent per year was twenty-seven hundred dollars ; but -the covenant proceeded unnecessarily to add "as follows, six hundred and twenty-five dollars” each quarter. This unnecessary addition, disagreeing in the amount with the rent immediately before reserved, which the lessee covenanted to pay, is manifestly a clerical error. It is to be construed as if it read, the tenant covenants to pay the rent reserved in equal quarterly payments, which are, or equal to, six hundred and twenty-five dollars per quarter. If such «as the language, there could be no doubt that the annual rent *247 was twenty-seven hundred dollars ; and the attempted division into quarters was simply a mathematical error, which should be rejected, or corrected.

"The great rule for the interpretation of written contracts is that the intention of the parties must govern. This intention must be ascertained from the contract itself, unless there is an ambiguity. In ascertaining the meaning of the parties as expressed in the contract, all of its parts and clauses must be considered together, that it may be seen how far one clause is explained, modified, limited or controlled by the others.” Applying this rule, it appears that the rent reserved in the grant was twenty-seven hundred dollars ; that the tenant covenanted to pay "the said rent in equal quarterly payments;” that in the reddendum he was to be expelled if he failed to "pay the rent aforesaid:” and in the fire clause the stipulation is "the rent hereinbefore reserved.” The rent reserved in the grant was twenty-seven hundred dollars. The erroneous division of that rent into four parts, cannot modify or control the express rent reserved and mentioned in the grant, the reddendum and the fire clause, but is controlled by them.

But it is said, that the parties by their acts have given a construction to the contract in accordance with defendant’s construction. Such acts, if done understandingly, with full knowledge of all the facts, are sometimes of controlling force. It appears that six quarters’ rent, at the rate of six hundred and twenty-five dollars each, were paid to Henry St. John Smith, one of plaintiffs, and receipts were given in each case for three months’ rent. But it also appears that the contract for lease was made with the other plaintiff, James H. Smith, and that Henry was not familiar with its terms. Henry says that at one time defendant called to pay the rent, and showed him the lease, folded so as to show the six hundred and twenty-five per quarter, but not to show the twenty-seven hundred dollars reserved rent; and that he looked at it, and supposing it to be right, accepted the money and gave the receipt, which defendant had previously prepared. This is denied by defendant, though he admits showing Henry the lease, Henry not having *248 present plaintiffs’ duplicate. But in May, 1894, when defendant offered to pay the rent to Henry, he had discovered the mistake, and declined to receive the money. The matter ran along till August 23, 1894, when defendant, by letter to plaintiffs, proposed to tender twelve hundred and fifty dollars, two quarters’ rent then being due, unconditionally, and without prejudice to any claims plaintiffs might have for any larger or different sum ; and on August 27, 1894, twelve hundred and fifty- dollars was paid to James, and-a receipt given for the amount, " On account rent due under written lease.” There-afterward the receipts were given on account of rent.

Defendant claims that when the twelve hundred and fifty dollars were paid, it was a settlement of all claims to the date of payment, and a waiver by agreement of any claim under the lease for a yearly rent in excess of twenty-five hundred dollars. But this claim is negatived by defendant’s letter to plaintiffs, of August 23, 1894, and the terms of the twelve hundred and fifty dollars receipt, and all subsequent receipts.

The plaintiffs are men of large affairs, and it is not difficult to understand how they might be misled by the quarterly amounts stated in the lease. Their receipts in full for several quarters are open to explanation. Upon all the evidence, we are satisfied that they were misled, perhaps by a lack of caution, but the defendant has not been prejudiced thereby.

"A court of huv should read a written contract according to the obvious intention of the parties, in spite of clerical errors or omissions which can be corrected by perusing the whole instrument.” Wallis Iron Works v. Monument Park Association, 55 N. J. L. 152.

It-is the opinion of the court, that the rent reserved by this lease is twentj'-seven hundred dollars per annum, and that the naming of six hundred and twenty-five dollars as the quarterly payments, is a clerical error, which should be, and is corrected by perusal of the whole lease. The suit is for the difference between twenty-five hundred dollars per annum, which has been paid, and twenty-seven hundred dollars per annum, which *249 should have been paid; and the plaintiffs are entitled to recover it.

Judgment for plaintiffs.