Howard v. Tomicich

Terral, J., delivered the opinion of the court. W. S. Howard & Co. leased of Baas, appellee’s grantor, a storehouse in Hazlehurst for the year 1901 for $30 per month rent. The written contract specially provided that it should be of force from January 1, 1901, to January 1, 1902, “with privilege of longer. ’ ’ Tomicich having bought the premises of Baas, gave Howard & Co. due notice to terminate the tenancy; yet Howard .& Co. declined to quit and deliver up the premises, contending that under the clause, ‘ ‘ with privilege of longer,” he was entitled to a new lease for the year 1902 at $30 per month rent. An action was brought under' ch. 142, code 1892, to determine the rights' of the parties. The question is- whether a lease of premises for one year ‘ ‘ with privilege of longer, ’■’ secures to the lessee the right of renewal of the lease at his option. We think it does not. It is too vague and uncertain to constitute a binding covenant. In this writing the question is, what was the intention of the parties, or, more properly, the meaning of the words in the clause under consideration ? and to give them, if we may, their legal effect. It is not permissible to take parol proof of the meaning of the parties, and, if we do so, it.would not avail-anything here; for [708] appellee has testified that in this clause he meant that appellant should have the preference of others for a new. lease at whatever rental they could agree upon, whilst appellant swore that he meant to secure to himself the right to a second term of one year at the same . rent. So the wisdom of the law excluding parol proof -of intention is justified by the evidence on that point in this case. An unqualified covenant to renew a lease involves the making of a new lease of the same premises for the same period and at the same rent (Wood’s Landl. and Ten., sec. 416), and a stipulation providing for a refusal of the premises for a fixed period gives a right to a new lease at the same rent (Tracy v. Albany Ex. Co., 7 N. Y., 472; s.c., 57 Am. Dec., 538); but the covenant “with privilege of longer,” has no certain meaning in regard to the term or the consideration of the lease. How much longer % Upon what conditions ? Certainly the stipulation is uncertain in both respects. Affirmed.