Foreman v. Hilton Co.

ARSCHURER, Circuit Judge (after stating the facts as above). The action of the District Court is assailed upon two grounds: (1) That the evidence does not show there was a 99-year lease made; and (2) that the tender and service of notice were insufficient to warrant cancellation of the lease. Involved in both propositions is the contention that there was contradictory evidence respecting questions of fact, and that it was improper to direct the verdict. [1] The cancellation clause, by its terms, became operative if the lessors “shall desire to make a 99-year lease, * * * or shall desire to sell or rebuild the building now upon said premises.” In neither contingency was the consummation of the desire a prerequisite; indeed, as to rebuilding^ it could not well have been. All that was required is that in good faith they shall definitely have the indicated desire. It must, of course, be a desire, not in the abstract or a mere hope or longing ; but it must have taken such definite form as shall indicate that the desire was genuine and purposeful and that it was not a mere sham, for the purpose of terminating the lease. Surely reasonable minds could not differ as to the genuineness of the desire and intent here appearing. A broker was employed, who devoted much time on the subject. Parties were brought together, and the lease negotiated and executed. The desirability of having these exceedingly valuable premises on State street under a single lease is apparent. One of plaintiffs in error testified that some time before he had been spoken to on the subject of a continuance of the tenancy, on the ultimate expiration of the lease, and that on another occasion an agent of the lessor had suggested that a 99ryear leasing was being considered. The uncontradicted evidence leaves no room for doubting the desire and definite purpose in good faith to effect such a lease. But it is contended that the clause of defeasance in the 99-year lease indicates that the lease was for 15 years only, with option for 84 years more. While this does not necessarily militate against the conclusion that the lessors were genuinely desirous of effecting a 99-year leasing, this is to all intents a 99-year lease; the lessors binding themselves absolutely for that term, and the lessee likewise binding itself, subject only to its exercise of the right of defeasance when and in the manner prescribed. [2] Respecting tender and notice it is not disputed that had the lessees willfully evaded the same they could not be heard to complain that they did not receive them. While the facts and circumstances shown point quite unerringly to deliberate evasion of tender and service of notice, plaintiffs in error testified to their entire want of knowledge that tender and service were sought, and that there was no evasion upon their part. So far, therefore, as the validity of the tender and [611] service might depend upon showing evasion by lessees, the issue of fact thereon could not properly be withdrawn from the jury. The issue of tender and service must therefore be considered upon the assumption that the element of evasion is absent. Were the tender and service under the indicated facts sufficient in law to terminate this tenancy ? Where a right is dependent upon tender of money or deed by one party, the opposite party may not complain of want of such tender where, through his own absence for any cause, the tender to him cannot be made, provided the other party was ready and able and undertook to make the tender, which lacked only the presence of the other party to effect it. Tasker v. Bartlett, 5 Cush. (Mass.) 359; Smith v. Smith, 25 Wend. (N. Y.) 405; Santee v. Santee, 64 Pa. 473; Hale v. Patton, 60 N. Y. 233, 19 Am. Rep. 168. Where a notice for termination of the tenancy is required by law or agreement to be given by the landlord to the tenant, and no mode of service is pointed out, the notice should in general be given personally to the tenant; but, where the tenant is not present to receive the notice, it may be given by leaving it upon the demised premises with some person there of years of discretion, in the employ of lessees and in apparent authority or agency for them, informing him of the contents of the notice. Blish v. Harlow, 15 Gray (Mass.) 316; Walker v. Sharpe, 103 Mass. 154; Clark v. Keliher, 107 Mass. 406; Wade on Notice, § 640. If parties contract that the notice must at all hazards and under all circumstances be delivered personally to the tenant himself, such service is essential, because the parties themselves have so agreed. An instance of this is Hogg v. Brooks, 15 L. R. Queen’s Bench Div. 256, whereon counsel for plaintiffs in error place much reliance. Here the lease stipulated for its termination after 14 years on lessor’s “delivering to the tenant, his executors, administrators or assigns 6 calendar months’ notice of their intention so to do.” Of this it was said in the opinion, “The court must construe that clause according to the ordinary meaning of the English language,” which that court held to mean an undertaking that at all hazards this notice must be delivered to the tenant himself, or the others specified, before the tenancy could be terminated. The requirement that the lessor “serve a notice” on the tenant is quite different from that of delivering it to him. “Serving” notice is not different from “giving” it, and, as has been seen, under statutes or provisions for “giving” notice to the tenant the notice is considered given if, in his absence it is left on the demised premises under circumstances as stated. The case of Henderson v Carbondale Coal Co., 140 U. S. 25, 11 Sup. Ct. 691, 35 L. Ed. 332 which counsel urge as holding to the contrary, is not in conflict. There the court held that, under the circumstances there pointed out, the mailing of a letter addressed to a tenant was not a compliance with the first part of section 10 of the Illinois Landlord and Tenant Act (Hurd’s Rev. St. 1921, c. 80), providing that notices of statutory demands “may be * * * served by delivering a written * * * copy thereof to the tenant.” We are of opinion that the continued absence of plaintiffs in error [612] for the indicated period of time' on and next prior to the last day upon which the stipulated notice might be served on them justified service of the notice by leaving copy upon the demised premises with some employee of lessees there, of mature age, in apparent authority or agency, informing him of the contents, in the manner as appears here to have been done, and that the service of notice here appearing was, under the uncontroverted facts, in law sufficient. What has been said sufficiently indicates our conclusion that the direction of the verdict did not withdraw from the jury any controverted issue of fact material to the determination of the cause. The judgment of the District Court is affirmed.