Diggs v. El Royale Corp.

McCOMB, J. From a judgment in favor of defendants after trial before the court without a jury in a declaratory relief action to have an option declared unrevoked, plaintiff appeals. The essential facts are these: On April 15, 1943, plaintiff and defendant El Royale Cor: poration entered into an option agreement whereby plaintiff was given the sole and exclusive right and option to purchase upon certain terms the El Royale Apartments owned by defendant corporation. This agreement contained among others the following provision: “This option may be exercised only'by written instrument signed by the Optionee or his heirs, executors, administrators or assigns, and delivered to an officer of El Royale Corporation, or to Martin Goldman, attorney for said Corporation, personally, or deposited in the United States mail by registered letter, postage prepaid, addressed to Martin Goldman, Attorney, 9000 Sunset Boulevard, Los Angeles, California, on or before the 1st day of May, 1944, provided, however, that the Management Agreement under date of 15th April, 1943, entered into between the El Royale Corporation and Jackson Diggs whereby said Jackson Diggs is employed by the El Royale Corporation as exclusive agent to rent and manage the El Royale Apartments, shall not have theretofore been cancelled, it being the understanding of the parties hereto that the within option shall cease and determine upon the posting of written notice of intention to cancel the aforesaid Management Agreement by the El Royale Corpora [343] tion, and that all rights of said Jackson Diggs, or his assigns, under this option shall cease upon the date of the posting of the aforesaid notice. ...” “. . . The consideration for this option is the exercise by the parties hereto of the Management Agreement hereinabove referred to. ” On the same day they entered into a management agreement concerning Bl Royale Apartments which contained among others this provision; “This agreement between parties may be cancelled at any time by either party upon thirty days (30 days) written notice of such intention. In event that Owner elects to cancel under this provision, from the time of posting of said notice all authority and powers of the Agent shall be subject to control by Owner and shall be exercised only with the approval of Fred B. Keeler, II, representing the Owner. “2. The Agent Agrees: “ (A) To accept and does hereby accept the management of the said premises for the period and upon the terms herein provided, and agrees to furnish adequate and competent services neeesssary for the renting, operating and managing of said premises.” On August 7, 1943, plaintiff received through the mail a letter from defendant corporation reading thus: “Mr. Jackson Diggs August 6, 1944 c/o Bl Royale Apartments 450 No. Rossmore Los Angeles, California “Dear Sir: “This is to advise you that the Bl Royale Corporation does hereby notify you that it is their intention to cancel the Management Agreement between yourself and the El Royale Corporation respecting the Bl Royale Apartments, and you are further notified that in accordance with the terms of the Option Agreement executed in connection with the said Management Agreement, said Option does, by the posting of this notice, cease and determine, and that all of your rights, or the rights of your assigns, under this option do, by the posting of this notice, thereby cease. “Very truly yours, BL ROYALE CORPORATION MG/rb” By: Martin Goldman Attorney for Bl Royale Corp. ’ ’ [344] This is the sole question necessary for us to determine: Was the option agreement terminated on August 7, 1943, by the letter from defendant corporation to plaintiff dated August 6,1943, set forth supraf This question must be answered- in the affirmative. The agreement expressly provided that the “option shall cease and determine upon the posting of written notice of intention to cancel the aforesaid Management Agreement” by defendant corporation “and that all rights of” plaintiff “or his assigns, under this option shall cease upon the date of the posting of the aforesaid notice.” It is conceded that on August 7, 1943, plaintiff received from defendant corporation a letter through the mail reading in part as follows: “that it is” defendant corporation’s “intention .to cancel .the Management Agreement between” plaintiff and defendant corporation respecting the El Royale Apartments, and plaintiff was notified “that in accordance with the terms of the Option Agreement, executed in connection with the said Management Agreement, said Option does, by the posting of this notice, cease and determine, and all of your rights, or the rights of your assigns, under this option do, by the posting of this notice, thereby cease.” The foregoing notice meets the exact requirements of the provision of the option contract for its, termination. There is not any ambiguity in the contract and there is not any basis for a different and other construction for this provision of the agreement. “Posting” means to place in the post office or in a letter box. 2 Webster’s New International Dictionary, second edition, (1939) page 1927, defines “post” as follows: “To dispatch by the post or mail; to place in the post office or mail box for transmittal; to mail; as, to post a letter. ’ ’ VII Oxford English Dictionary, (1933) page 1163, III-6b, defines “post” -thus: “To send through the post office; to put (a letter, etc.) into a post office or letter-box for transmission by the post.” Punk & Wagnalls Practical Standard Dictionary, (1938) page 886, gives this definition of “post.” “To place in the post-office or in a letter-box.” Allen’s Synonyms and Antonyms, (1938) page 300, defines “post” as “mail.” In view of the foregoing definitions, there can be no question that the word “posting” as used in the option agreement [345] meant to place in the mail. This, it is conceded, defendant corporation did with its letter of August 6, 1943. The various authorities cited by plaintiff are factually distinguishable from the present case. None of them are in point and it will serve no useful purpose to discuss them here. A mere reading of such cases as Penn v. Dyba, 115 Cal.App. 67 [1 P.2d 461], and Kramer v. Sanguinetti, 33 Cal.App.2d 303 [91 P.2d 604], show that they are inapplicable to the facts in the present case. In view of our conclusions it is unnecessary for us to consider other points urged by plaintiff. For the foregoing reasons the judgment is affirmed. Moore, P. J., concurred.