Colclough v. Carpeles

PikNey, J. 1. The contention of the defendant’s counsel is that the instrument on which the action is founded is not a lease; that although rent is reserved by it and agreed to be paid by the defendant, and it contains words of present demise, and there is nothing to show that the parties contemplated the execution of any other or further instrument on the subject, still there is no certain time expressed when it shall commence, nor is it made contingent upon the happening of any certain event; and therefore it is said that it is invalid, as a lease, for uncertainty. The general rule is stated to be that no precise words or technical form of language are required to constitute a present demise, and that if there are words showing a present intention that one is to give, and the other to have, possession for a determinate term, a tenancy is created; and that where there are words of present demise the instrument should operate as a lease, and not as an agreement for a lease. 2 Addison, Cont. (Morgan’s ed.), § 677; Chapman v. Bluck, 4 Bing. N. C. 187, 196. Unless some certain beginning or event is referred to by which the period of its commencement may be ascertained, it will be void for uncertainty. Tayl. Landl. & Ten. § 70. There — 245 — can be no doubt but that a valid term for years may be created to commence in futuro, and, if it be upon a contingency which must happen, the lease will be valid. In the present case the premises are to be held for a term ending February 1,1902, and the owner, the plaintiff, agreed to erect a factory building thereon, and complete it so that it would be ready for occupancy on or before March 1, 1892, according to certain plans and specifications, unless prevented by causes beyond his control, he on his part exercising reasonable care and diligence; reserving an annual rental of $4,300, payable in sums of $358.33 on the 15th of each month, to begin when the building shall be ready for occupancy, the first payment to be made on the 15th day thereafter, and thereafter on the 15th day of each month. It also contains the usual formal stipulations mentioned in the foregoing statement. Ve think that the instrument in question was a - valid lease in prcesenti, for a term to commence in futuro, — that is to say, on the 1st of March, 1892, being the date when it “was agreed the building should be completed ready for occupancy; and there is evidence tending to show that it was so completed at the agreed túne, and possession tendered to the defendant, and thereby the essential element of certainty of the commencement of the term was fully satisfied. In Thornton v. Payne, 5 Johns. 74, an agreement to let a farm, on condition that an annual rent of $250 should be paid for it on the 1st of April in each year during the term, was made January 7, 1806, for six years from April 1, 1807, and ending April 1,1813, and it was held to be a lease and not an agreement for a lease, and the payment of the $250 was not a condition precedent. It was there said by SrENCEE, J., that “it is a cardinal point in determining whether contracts between parties in relation to letting are leases or agreements for leases, to seek for the intention of the parties from the -whole instrument; ” and that “ in every — 246 — case decided in the English courts where agreements have been adjudged not to operate by way of passing an interest, but to rest in contract, there has been either an express agreement for a further lease, or construing the agreement to be a lease m prmsenti would work a forfeiture, or the terms have not been fully settled and something further was to be done.” An agreement to complete a certain building then erected for a factory and furnish water power and machinery therefor by a future day certain, and leasing said building to B. for a term of ten years from the day mentioned, etc., and B. entered into possession, it was held to be ' a present demise to commence i/nfutwro, and not merely an agreement for a lease. Bacon v. Bowdoin, 22 Pick. 401, 405. And the case of Jackson v. Delacroix, 2 Wend. 433, was distinguished, on the ground that the agreement in that case contained a provision for a future lease. To the same effect is Shaw v. Farnsworth, 108 Mass. 357. And in Bussman v. Ganster, 72 Pa. St. 285, where the agreement with B. was that G-. would erect a storehouse on his lot, with fixtures, to the satisfaction of B., to be ready by August 1st, at a rent of $600 per annum until April 1st, and thereafter for five years at the rate of $800 per annum, payable monthly, it was held that this was a lease of the land as well as the building, with a covenant by the lessee to pay rent; and Shaeswood, J., says: “It is true, here are no formal words of demise, but it is very manifest that, after the erection of the building, there was created a term of years in the premises, with a certain commencement and a certain termination; in short, with all the requisites of a demise.” The period need not be definitely fixed by the contract of the parties which creates the estate. Id certmn est qxiod cert/am reddipotest.- It is enough that the instrument contains sufficient means of ascertaining the commencement and the end of the term. Tied. Real Prop. § 173. The conclusion at which we have arrived is sustained by — 247 — Chapman v. Bluck, 4 Bing. N. C. 187; People ex rel. Ward v. Kelsey, 14 Abb. Pr. 372; Trull v. Granger, 8 N. Y. 115, 118; Becar v. Flues, 64 N. Y. 518, 520. Tbe right of tbe defendant to tbe possession of tbe premises was complete on tbe day fixed for tbe completion of tbe building for occupancy, and be bad covenanted to pay rent, to be computed from that date, and could bave maintained ejectment for tbe premises. Tbe intention of tbe parties is clear from tbe instrument, and no further act was needed to elucidate it, such as taking possession. Tbe case of Regnart v. Porter, 7 Bing. 451, relied on by tbe defendant, is like thjs case would bave been bad tbe factory never been erected. In that case tbe improvement stipulated for was never made, and tbe parties sought to be charged bad never bad enjoyment or bad tbe opportunity to enjoy tbe premises according to tbe agreement. 2. Tbe question of fact strenuously disputed at tbe trial-was whether tbe building was completed ready for occupancy by March 1, 1892, in accordance with tbe plans and specifications, so far as applicable, and where not applicable whether it was built of proper material and in a reasonably safe and workmanlike manner,— in brief, whether there bad been a substantial compliance with tbe contract on tbe part of tbe plaintiff; and tbe evidence was such as to call for proper instructions to tbe jury on this subject. Tbe court instructed tbe jury that, as to tbe work which was designated in tbe specifications, tbe question was whether or not there bad been a substantial and full compliance with tbe specifications; and as to tbe walls, in respect to which there were no specifications, tbe test was whether or not they were erected and constructed in a reasonably safe and workmanlike manner, and of reasonably safe and proper material, for tbe known purposes for which tbe building was to be used. And after having directed tbe jury in respect to what effect tbe fact would bave, if they so found it, — 248 — that after defects bad been, pointed out by tbe defendant tbe plaintiff promised to remedy them, and tbe defendant, agreed tbat if be did so be. would accept tbe building, and tbe plaintiff incurred a large sum of money in supplying tbe defects, tbe court again repeated tbe instructions above set forth, in substance, adding: “ If, on tbe contrary, you find tbat tbe work wbicb was not specified bas been done in a. manner wbicb was enbvrekj unsafe, unsatisfactory, and unfit, for tbe uses for wbicb tbe building was designed, and if you find tbat tbe work wbicb was specified bas been done in sucb a way as to afford no substantial compliance with tbe specifications, tben you should find for tbe defendant.”' Further, tbat if after changes were made to remedy defects pointed out, “ if a defect bas since developed wbicb must have existed at tbat time (March 1,1892), although not fully developed, sucb.as to make tbe building absolutely unsafe for occupation and use as a trunk factory, you are to consider tbat fact in determining whether there was a substantial compliance with tbe contract, March 1, 1892; ” and after referring to tbe crack in tbe wall, caused by its settling unequally and tbe danger to tbe building on account of it, and tbat it could not be considered a defect “ unless it endangers the standing and stability of tbe building for tbe uses for wbicb it was designed,” tbe court further stated: “If you are satisfied tbat tbe building is in danger of bumbling down on account of tbe separation of tbe wall, . . . you are at liberty to find for tbe defendant, if you find{ the building absolutely unsafe by reason of a defect wbicb bas developed since those changes were made; ” tbat tbe previous condition of tbe building was unimportant, except as it bore on its condition March 1, 1892, and its present condition, and except so far as infirmities have since developed which render tbe building actually misafe. Subsequently tbe court, charged tbe jury tbat if by reason of tbe crack in tbe wall,, or anything else, tbe building bad become unsafe by reason — 249 — of an original infirmity, they might find for the defendant, although it might have appeared to the contrary, “ if the building was not in fact properly constructed so as to be a safe and proper place for his business at that time.” The instruction first given to the jury stated the rule of law correctly as to what would be a sufficient performance of the contract on the part of the plaintiff. The subsequent instructions on this subject are repugnant to and contradict-' ory of this rule, and it Avas error to give them, requiring a reversal of the judgment. It does not require argument or the citation of authority to shoAV that the defendant could defend this action on the ground that there had not. been a substantial compliance with the specifications, or that the walls, in respect to which there were no specifications,, had not been erected and constructed in a reasonably safe and workmanlike manner, of reasonably safe and proper material for the known purposes for which the building was to be used, without shoAving that, at the time the premises were tendered to him, either that the building Avas entirely unsafe, or that defects then existing by reason of the plaintiff’s failure to substantially perform his contract, AArhether open or latent, and since developed, in Avhole or in part, had rendered it absolutely vmsafe or in clanger of tumbling down, or that it Avas actually vmsafe. A building in either of these conditions would be untenantable, and, if it merely conformed to the requirements of these instructions, would be, in no just or proper sense, a substantial compliance with the ■obligations of the plaintiff under the contract. Other points in relation to the admission or rejection of evidence do not require notice, as they may not arise upon another trial. Eor the errors noticed in the instructions of the court to the jury the judgment must be reversed. By the Cowrt.— The judgment of the, circuit -court is reversed, and the cause remanded for a new trial.