DeFriest v. Bradley

Braley, J. The original lease contained neither a covenant for renewal, nor an agreement for an additional term at the election of the lessee. If the last provision had been inserted, and the option had been exercised, there would have been a present demise to take effect at the expiration -of the first term, and no subsequent agreement or second lease would have been necessary. Stone v. St. Louis Stamping Co. 155 Mass. 267, 270. The leasehold estate would have been thus prolonged to the end of the entire period, subject to all the conditions and covenants, including that of the right of the lessor to cancel the lease at his pleasure upon giving written notice and paying the stipulated sum which was to be graduated in amount according to the time the lessee had occupied the premises. Dix v. Atkins, 130 Mass. 171. Toupin v. Peabody, 162 Mass. 473. It was, however, within the contractual power of the parties by a later arrangement to prolong the term although the lease was silent on this subject, and this was done by an instrument which has been referred to as the agreement of extension, which was executed and became operative before the term provided for in the lease had expired. In legal effect this agreement operated to extend the term as effectually as if its principal provision had been inserted in the lease in the form of an option of extension for a further definite period at the election of the lessee, who subsequently made such an election. By either way, then, the result is the same, for the original demise is thereby lengthened to cover the longest time named. The lease and the agreement, therefore, must be construed together and considered in their entirety as forming the contract between the parties. This, with an exception presently to be noticed, is not denied by the plaintiffs, as they aver in their bill that all the covenants and agreements to be kept by them have been performed. The exception is the reservation of the right to cancel the lease, [352] of which the lessors by a proper notice having signified their intention to take advantage, this bill is brought for the purpose of enjoining them from enforcing a cancellation. From the facts which are not in dispute it is manifest that the plaintiff DeFriest made the improvements on the premises at a large expense with the knowledge and consent of the defendants, and upon an oral understanding with them that if this was done by him the lease should b,e extended for a further term of five years. During these negotiations and in the oral agreement there was no reference whatever made to the right of cancellation, and from the testimony of the lessee, which is stated in his findings of fact by the presiding judge before whom the case was tried to have been entitled to full credence, it is apparent not only that he expended his money in good faith relying upon the representations of the defendants that if he did so they would permit him to occupy the premises for the entire term, but also that such expenditures would not have been made if he had understood that they still claimed the right to terminate his tenancy at their will. If the written agreement had merely) prolonged the term without further details, and the defendants then had attempted to enforce a cancellation, the plaintiffs would have been able to defeat a forfeiture by proof of the oral agreement, from which it could have been found that it was not within the contemplation of the parties to keep this condition alive, as its enforcement would defeat the object for which the extension was granted. Durkin v. Cobleigh, 156 Mass. 108, 109. But where after preliminary verbal negotiations have taken place the parties finally put their contract in writing, an independent contemporaneous oral agreement relating to the subject matter which is inconsistent with the terms of the instrument cannot be given effect to vary or modify its provisions. Thomas v. Barnes, 156 Mass. 581, 583. This principle, however, is not in conflict with another well settled rule upon which the plaintiffs rely, that for the purposes of interpretation and application of the terms of a contract evidence showing the subject matter with which the parties dealt, the object which they sought to accomplish, as shown by the preceding negotiations, is competent, not to vary what has been reduced to writing, but to aid in its construction and to make plain in [353] what sense the parties used and understood the language they employed. Palmer v. Clark, 106 Mass. 373, 387. Keller v. Webb, 125 Mass. 88, 89. Proctor v. Hartigan, 139 Mass. 554. Bassett v. Rogers, 162 Mass. 47, 51; S. C. 165 Mass. 377. Alvord v. Cook, 174 Mass. 120, 122, 123. Lynn Safe Deposit & Trust Co. v. Andrews, 180 Mass. 527, 534. Hebb v. Welsh, 185 Mass. 335. But this rule is inapplicable. Upon recurrence to the agreement it purports in clear and comprehensive language to grant an extension of the demised term, subject to “ all provisions, agreements, terms and conditions in said lease” and in this form it was prepared by the plaintiffs’ attorney and submitted to and signed by the defendants, and was left in escrow with the plaintiffs’ attorney until after the time had expired during which mechanics’ liens might have attached, when it was delivered to the plaintiffs at the completion of the improvements. See Nickerson v. Massachusetts Title Ins. Co. 178 Mass. 308, 311. Neither upon the face of this instrument, if considered independently, nor when read in connection with the lease is there any ambiguity of expression, any more than there is in the lease itself, concerning the matter in dispute. That according to the understanding of the lessee, when the term was extended, there should have been an exception inserted stating that all of the covenants and obligations of the lease should continue in force except the lessors’ right of cancellation, is not sufficient. Under the guise of construction by invoking the previous conduct and language of the parties the normal meaning of words cannot be explained away in equity any more than at law, even if by giving them their common signification it may result, as in the present case, in allowing one party to the contract to obtain an advantage which otherwise would be inequitable. Kelly v. Cunningham, 1 Allen, 473, 474. Violette v. Rice, 173 Mass. 82, 84, and cases cited. After receiving evidence of the attendant circumstances by which to determine whether the written contract expressed the intention of the parties, it is then to be determined whether the part of the contract alleged to have been omitted is covered by the writing. If it is, parol evidence is inadmissible. Goode v. Riley, 153 Mass. 585. Benson v. Gray, 154 Mass. 391, 395. Reynolds v. Boston Rubber Co. 160 Mass. 240, 245. Menage v. [354] Rosenthal, 175 Mass. 358. Boruszweski v. Middlesex Assur. Co. 186 Mass. 589. There is no suggestion that the execution and acceptance of the agreement by the plaintiffs was procured by the fraud or misrepresentation of the defendants, neither is there evidence that since then in reliance either upon their conduct or representations the plaintiffs' have been led or induced to change their position for the worse so that neither a waiver of this part of the contract nor an estoppel which prevents its enforcement is shown. Stiff v. Ashton, 155 Mass. 130. Nor were they concluded by the negotiations before the written agreement was reached, upon the view advanced by the plaintiffs that this provision having thus either been waived or the defendants estopped, it had ceased to be operative, and therefore was not included, as the undisputed language of the agreement itself affirms this right. Kent v. Warner, 12 Allen, 561, 563. Batchelder v. Queen Ins. Co. 135 Mass. 449, 450. Metropolitan Coal Co. v. Boutell Transportation & Towing Co. 185 Mass. 391. Under our construction of the agreement, as we have said, it operated to continue the leasehold estate for the full term of nine years from the date of the lease, subject, of course, to the essential covenants and stipulations, and the notice given to the lessee that the defendants elected to take advantage of the right to cancel, having been preceded by a tender of the amount required if cancellation took place after the first year and a half of the term had expired, had the effect of terminating the lessee’s estate and interest in the premises. A majority of the court are of opinion that the entry must be, Decree affirmed.