Nicolopole v. Love

Mr. Justice Van Orsdel delivered the opinion of the court: The assignments of error are as follows: “(1) In holding the ¡affidavit of plaintiff, filed on March 14, 1912, sufficient under rule 19 of the supreme court of the District of Columbia to entitle plaintiff to judgment for possession, and in rendering judgment for plaintiff for possession; (2) in holding the affidavit of ■defendant filed on March 25, 1912, an insufficient defense to plaintiff’s affidavit under rule 19 of the supreme court of the District of Columbia, and denying defendant’s right to trial by jury; (3) in granting plaintiff’s motion for judgment, filed April 4, 1912; (4) in not overruling plaintiff’s motion for judgment, filed April 4, 1912, and in not entering judgment for the defendant.” Counsel for plaintiff filed a motion to dismiss the appeal on ■the ground that there is no specific assignment of any error relied upon, and that errors are not assigned according to the rules of this court. The rule ref erred to provides: “There shall [347] be filed in the court below, and the same shall be included in the transcript of record, an assignment of errors relied upon by appellant, separately and specifically stated.” Rule 5, sec. 8. This rule is in effect the same as rule 11 of the United States •circuit courts of appeal. In a number of cases the sufficiency of similar assignments have been upheld. Atchison, T. & S. F. R. Co. v. Meyers, 22 C. C. A. 268, 46 U. S. App. 226, 76 Fed. 443; Leslie v. Standard Sewing-Mach. Co. 39 C. C. A. 314, 98 Fed. 827. The only question here presented is the action of the court in rendering judgment upon the affidavits of plaintiff .and defendant, whereby defendant was deprived of a trial by jury. These questions are fully preserved for review by the first and second assignments of error, the third and fourth assignments of error being mere surplusage, and, as such, to be ■disregarded. While the rule is intended to require the specific .statement of each error of the court below relied upon for reversal, it is equally intended to operate in the interest of brevity •and clearness, and not as an avenue for the insertion of either .argument or redundant matter. For these reasons the motion to dismiss is denied. Coming to the case on its merits, we do not regard the lease difficult .of interpretation. Two rights were reserved to the plaintiff, under either of which he could terminate the lease, first, in case he should sell or convey the property to another who should elect not to continue the tenancy of defendant; and, second, in case he should tear down to rebuild the building occupied by defendant, in which event he should give defendant sixty days’ notice. Plaintiff relies solely upon his right to terminate the lease on the second condition. Hence we are relieved from the task of determining the effect of the first condition. The contract was personal between plaintiff and defendant, and must be construed to operate as such so long as the title to the property remained in the plaintiff. The language used in the contract is somewhat ambiguous. It will be noted that plaintiff cannot give the notice to oust defendant upon a mere desire to tear down to rebuild, but he can only recover possession for the purpose of tearing down to rebuild. Much [348] space has been covered in the briefs of counsel on this distinction, but we are disposed to take the commonsense view of what the parties intended by the provision. It clearly means-when plaintiff in good faith desired to tear down to rebuild the-premises he could get possession in the manner provided in the contract. The difficulty, however, is that it is not plaintiff who proposes to tear down to rebuild. It is a new tenant, with whom defendant has no privity, and who was not within the contemplation of the parties when the contract was made. Change-of ownership was contemplated and provided for, but the rebuilding by any person other than plaintiff was not contemplated or within the knowledge of defendant. The most that, can be accorded the language of the contract is a possible desire" on the part of plaintiff to regain possession for the purpose-of rebuilding. That, however, "is not what he proposes to do. He has leased the property to Childs Company for twenty-five-years, not in its reconstructed condition, but in its present, condition, as it is now occupied by defendant. Childs Company agrees to put in a new building on the premises, not as the-agent of plaintiff, but as his tenant, and in part payment of the-rental therefor. Plaintiff is not desiring possession to enable-him to rebuild, but to enable him to put into effect his lease with Childs Company, in order that it may rebuild for its own use. The possession here sought by plaintiff is not for himself, but. for Childs Company. Closely analogous to the present case is Broadway & 7th Ave. R. Co. v. Metzger, 27 Abb. N. C. 160, 15 N. Y. Supp. 662, where the court, considering a similar situation, said: “The-lease, dated November 4, 1889, was made by McCreery, as-lessor, and respondents, as lessees, and demised the premises for one year, from February 1, 1890, to February 1, 1891, and contained the following provision: ‘And the said tenants have the privilege of remaining for one year more, viz., from February 1, 1891, to February 1, 1892, provided the owner does not. desire possession of the premises for building purposes.'5 When the lease was entered into, Mr. McCreery was the owner of the premises therein described, and it does not appear that at that [349] time the lessees were aware of any contemplated change of ownership, or of any project of building upon the premises by persons other than the owner. The only reasonable.interpretation, therefore, which could be given the language quoted, is that it comprehended a possible desire'on the part of McOreery to resume possession for the purpose of erecting buildings, then remotely contemplated by him. This is its plain and obvious import, the sense in which it is most favorable to the lessees, and therefore the sense which must be held to control. Lowber v. Le Roy, 2 Sandf. 202; Dwight v. Germania L. Ins. Co. 103 N. Y. 341, 57 Am. Rep. 729, 8 N. E. 654; Hoffman v. Ætna F. Ins. Co. 32 N. Y. 405, 88 Am. Dec. 337; White v. Hoyt, 73 N. Y. 505; Johnson v. Hathorn, 2 Abb. App. Dec. 469. McCreery’s desire to gain possession, not for himself, but for a third person, as his subsequent lessee, who has covenanted to ■erect buildings which, upon the expiration of his lease, are to revert to the lessor, cannot be regarded as having been in the contemplation of the parties at the time when the lease between McOreery and the respondents was entered into, except upon a distorted process of reasoning, and is not within the operation of the clause above mentioned. That McOreery did not desire possession for himself to enable him to carry out his own building projects was made conclusively apparent upon the trial from the lease introduced in evidence, by which he granted a leasehold estate therein to the appellant for the term of forty-two years, commencing immediately upon the expiration of the term originally demised to the respondents, thus depriving himself of the right to claim possession; and from the further fact that the negotiations for that lease commenced in September, 1890, by which is manifested an absence of desire to resume possession.” In the case at bar plaintiff prepared the lease, and, though the language used in reserving to him the right to terminate the lease for the purpose of rebuilding is somewhat ambiguous, it will most reasonably admit of the interpretation we have given it, especially in the light of the rule that where a contract will admit of two constructions, either of which is reasonable, [350] the one most favorable to the grantee must be adopted, on the-principle that a man’s grant shall be construed most strongly against himself. Com. ex rel. McNeile v. Philadelphia County, 3 Brewst. (Pa.) 537; Schmohl v. Fiddick, 34 Ill. App. 190; Hilsendegen v. Hartz Clothing Co. 165 Mich. 255, 130 N. W. 646. The judgment is reversed, with costs, and the cause remanded with directions to enter judgment for defendant. Reversed.