Marino v. Williams

By the Court, Talbot, C. J.: This is an appeal from an order made after the filing of the amended .complaint and answer refusing to dissolve a preliminary injunction which had been issued upon the complaint at the time of the commencement of the action. As facts sufficient to control the questions involved are admitted by the pleadings, they may be determined without reference to the defenses set up in the answers, wherein it is alleged that plaintiff declined to renew his sublease, and refused to join in appointing appraisers to fix the rental therefor, which allegations are deemed denied, but which, if established on a trial, would prevent plaintiff from obtaining the relief he seeks in this action. It is shown by uncontroverted allegations that Lee Williams, one of the defendants, leased to J. A. Walker and C. A. Baldwin a lot or parcel of land in Goldfield, by an instrument in writing, which provided: " This lease is for a term, commencing on the 19th day of November, 1904, and expiring on the 19th day of November, 1906, with a privilege of a renewal for another two years from and after the expiration of the first two years, at a rental price per month to — 368 — be determined by a board of three arbitrators or appraisers, one to be selected by the party of the first part, and one by the party of the second part, and a third to be chosen by these two. * * * This agreement shall bind the heirs, executors and administrators of the parties hereto, with full power to sublet the same, and to sell and convey.the interest in said term, owned by the party of the second part:’ On May 4, 1905, Walker and Baldwin sold and assigned, or sublet, the full term in their lease to a part of the demised ■ land to J. Wollner & Co., who on the 12th day of October, 1905, assigned to plaintiff their interest or sublease, which contained a provision for a renewal for an additional two years from the 19th day of November, 1906, similar to the one in the original lease. Prior to that date Baldwin had sold and assigned his interest to Walker. It is also alleged in the amended complaint: "That said Lee Williams and said Walker refused to appoint appraisers or to comply with the covenants and conditions of said lease to and with plaintiff; but, without the knowledge or consent of plaintiff, they, the said Lee Williams and J. F. Walker, on or about the 21st day of November, 1906, appointed at their own instance appraisers, who appraised and fixed the monthly rental of the whole of said lands and premises, as leased to said Baldwin and Walker, in the sum of $400 per month, and failed and neglected to appraise and fix the monthly rental of the lands and premises occupied and possessed by the plaintiff herein. * * * That after said appraisement so made by said Williams and Walker, * * * the said Walker surrendered his said lease to said Williams, intending, as plaintiff is informed and believes, to seek thereby to destroy the privity of estate between plaintiff and said Williams, and the said Williams took and accepted the surrender thereof, as plaintiff is informed and believes, with the intent and purpose to destroy the privity of estate between plaintiff and said Williams. But plaintiff avers: That by reason of the appraisement so made by the said Williams and said Walker, said Williams elected to continue said lease, and is estopped to deny the privity of estate growing out of the assignment of the part of the lease by said Walker and Baldwin to said J. — 369 — Wollner & Co., to this plaintiff, and that this plaintiff was and ever since the 4th day of May, 1905, np to the sale of said land and premises, to Henry Weber, as hereinafter stated, the lawful tenant of said Lee Williams and J. F. Walker, and possessed and entitled to the possession of the lands and premises described in 'Exhibit A.’ That some time in the month of December, 1906, the said Lee Williams sold and transferred the lands and premises leased to said Walker and Baldwin to defendant Henry Weber, he, the said Henry Weber, then and there having full knowledge of the terms and conditions of plaintiff’s lease, and his right to a-renewal thereof as herein stated, and took and accepted said lands and premises subject to said plaintiff’s lease and the right to the renewal thereof, and plaintiff avers that he has now, and ever since the purchase of said lands and premises by said Henry Weber had, a good and valid lease on so much of said land and premises purchased by said Henry Weber from said Lee Williams as is described in 'Exhibit A.’ That the term of said lease begins November 19, 1906, and ends November 19,1908. And-that said Williams and Weber should appoint appraisers to and with said plaintiff, and fix the monthly rental of said lease, and accept from plaintiff the payment thereof.” The plaintiff demanded a renewal of his sublease and tendered $175, which he alleged to be the reasonable monthly value of the part of the premises occupied by him, and also made two tenders during two months of $400 each. Under the circumstancés related, was the defendant Williams, or his grantee, Weber, under any obligation to renew the sublease on the part of the premises held by plaintiff1? Although the holders of the original lease were authorized to sublet, any agreement they made would not hold the owners of the property beyond the first term of two years, and subleases would not be binding against the owners after the 19th day of November, 1906, unless the original lease was renewed. If Williams and Weber and the property are to be held, it must be by reason of some agreement, act or omission on their part sufficient to create a liability against them, and not upon any covenant made by Walker and — 370 — Baldwin' standing alone. No doubt, by joining in the appointment of appraisers two days after the expiration of the lease, Williams waived the right to any notice for that purpose, or to object that the request for the appointment of appraisers had not been made in time. The sublease contains a clear provision for a renewal, but it was not signed nor assured by Williams or Weber against whom relief is sought, and it becomes necessary to consider whether there was a renewal of the original lease, and whether Williams made any agreement or performed any act, which would be binding upon him or the property after the expiration of the original lease which he had executed. Therein he had given the holder the option or privilege of renewal at & rental to be fixed by appraisers. Upon such expiration he could neither command nor refuse a renewal. He was subject to the will and pleasure of C. W. Walker. If the latter demanded a renewal of the lease, he would be bound to grant it; but if, instead of requesting a renewal, Walker offered to surrender the original lease and possession, Williams had no alternative but to accept the surrender, unless he abandoned the property, for Walker, at least so far as his obligations ran to Williams, was free to not exercise the privilege of renewal, and to decline to bind himself to pay rent, or to assume the responsibilities of a tenant for a renewed term. Upon the surrender of the lease and possession by Walker, Williams, being in no position to compel a renewal and the payment of rent for a further term of two years on the whole of the property to which he would have been entitled, if Walker under his privilege had taken a renewal, was under no obligation to renew a sublease on part of the property, something which he had never agreed to do. In accordance with the contention of respondent, it may be conceded, for the purposes of this case, that under the circumstances existing here, and under a lease containing no provision for forfeiture upon failure to pay rent or for other cause, the voluntary acceptance of a surrender of the lease, and of possession by the landlord, may obligate him in the place of the lessee to subtenants for the remainder of the term, and that, if there is a renewal of the lease, a similar — 371 — obligation attaches during the renewed term. So far as is shown here, there was no execution of, nor demand for, a renewal, and the term and the leasehold interest in the property as far as granted by the owner had expired. It is urged that the appointment of appraisers by Williams and Walker to fix the rental value amounted to a renewal; but on reflection we believe that Walker was not obliged to exercise his privilege of a renewal at a rental value to be fixed by appraisers, until that value had been ascertained, and then, if he deemed it too high, he could surrender the lease and premises, instead of taking a renewal which was subject to his option. Formally, a renewal lease could not have been drawn upon the mere appointment of the arbitrators, nor until after the amount to be inserted for rent had been fixed by them. As it does not appear that there was any request for a renewal after the amount had been determined, nor before, in the absence of such request we conclude that the mere joining in the appointment of appraisers did not amount to a renewal nor to a demand for one, and, consequently, that, after the expiration of the original lease, there was no privity of contract between the owner of the premises and the holder of the sublease. If the lease had provided that it was to run for two years at a specified sum, and .for an additional two at a rental to be fixed by appraisers, at the end of the first period the parties would have been bound by the action of the appraisers; but the words quoted gave the privilege or option to the holder of the lease, which did not make it incumbent upon him to take the renewal, if he was not satisfied with the new rate. By surrendering possession, instead of demanding a renewal after appraisement, the provision for a renewal terminated and became ineffective. The original lessor or owner of the property was no longer protected by the original lease, and as no renewal was executed or demanded, and he could enforce none, which would enable him to collect the rent from the holders of the original lease for the full term, there was no obligation requiring him to renew the sublease on only a part of the- premises covered by the lease he had given. As indicated by the cases cited for appellants, courts have distinguished and often held that a demand for a — 372 — renewal is necessary, when the lease gives the privilege of a renewal, when none would be required, if it merely provided for an extensiou of the lease at the holder’s option. Much of the briefs pertain to the question whether the sublease, so called in that instrument itself, being on a part of the premises, and giving an easement on a part of the remainder for the full term, is a sublease or an assignment, and it is claimed that, as an assignment, it gives the right of renewal; but we deem this question immaterial, for, whatever the language or construction, the holder of the sublease can have no greater rights against the lessor as owner of the premises then were given by the original lease, which did not provide for a renewal on a part of the land. It may be conceded that, if plaintiff had an assignment of the whole of the original lease, he could have demanded a renewal on the whole premises, and that, if Williams had been a party to the sublease, its provisions for a renewal on a part of the premises could be enforced against him and his successors in interest; but, under the facts stated, we are unable to see how they can be required to fulfill this covenant in the sublease, when it is different from any in the original lease. As apparently the allegations and admissions in the pleadings are conclusive, and in view of the near approach of the expiration of the time claimed for a renewal, the delays of-litigation, and the conditions, we have considered the question presented as probably controlling on the merits, which is in consonance with the briefs and argument. Nevertheless, it may be said that, under the circumstances, the temporary injunction to run until the further order of the court was not improperly granted, and that its dissolution was not erroneously refused, if the judge entertained serious doubts regarding the final right of the plaintiff to have a restraining order. Courts have often held that an injunction ought not to be granted unless the applicant shows clearly that he is entitled to one, but other tribunals take the view that it depends largely upon a sound discretion and the circumstances, such as the relative inconvenience and injury that may result to the parties, and that where there is grave doubt in relation to the law or the facts a temporary injunction may be granted — 373 — to prevent great hardship or irreparable damage, until there is a hearing and determination. (Harriman v. Northern Securities Co., 132 Fed. C. C. 464, and eases there cited.) Now, as it no longer appears, after careful consideration, that the plaintiff is entitled to it, the district court is directed to set aside and dissolve the preliminary injunction.