Salisbury v. Shirley , 53 Cal. 461 ( 1879 )

By the Court, Crockett, J:

In legal effect, the covenant in the lease was, that during the last six months of the term the lessee would pay the monthly rent, and all taxes, rates, and assessments which, during the six months, should be levied or assessed upon the demised premises ; but subject to the proviso that if the net income from the property during the six months should be insufficient to pay the rent, taxes, and assessments, the lessee was under no obligation to pay more than the net income amounted to. In suing to recover the taxes levied during that period, it was incumbent on the plaintiff to show in the complaint a breach of the covenant by an averment that the net income from the property during the six months was sufficient to pay the rent, taxes, and assessments ; and if not sufficient to pay the whole, the amount of the net income should have been averred, so as to show the amount, if any, applicable to the taxes. But there is no such averment, nor any equivalent averment in the complaint. Subdivision 14 of the complaint, which contains the only averment on the subject, is in these words :

“ 14. That in every year during the term of said lease, the net amount of rent received by the defendants from said premises, after deducting all taxes and assessments levied or assessed on said premises and the improvements thereon, exceeded the sum of' two hundred and fifty dollars per month; and the net amount of rents by them received from said premises during the last year of said term was more than sufficient to pay said rent of two hundred and fifty dollars per month, and said tax of two thousand four hundred and twenty-three dollars and twenty-six cents, and all other rates, taxes, and assessments on said premises and improvements.”

The familiar rule is that a pleading is to be construed more strongly against the pleader; and the averment that “ in every year during the term of said lease,” and that “ during the last year of said term ” the rents and profits received by the lessee were more than sufficient to pay the rent and the taxes levied during that year, cannot be held to be equivalent to an averment that during the last six months of the term, which was only a fraction of a year, the income from the property was sufficient to pay the rent and taxes during that fraction of a year. A year is twelve calendar months; and when the averment is that “ during a year,” or “ in every year ” during a term of years, a certain event happened, the natural construction of this language is that the event transpired during a period of twelve months. On the opposite construction, the averment of this complaint would apply as well. to • a period of one day in a year as to a term of six months, each being only a fraction of a year. If this lease had been for a term of ten years and three days, instead of ten years and six months, and if the action had been to recover taxes levied during the three days, to the amount of twenty-four hundred dollars, I apprehend that an averment in the complaint that “in every year during the term ” the income from the property had exceeded the rents and taxes, and that “ during the last year of said term ” the income had been more than sufficient to pay the rent and the two thousand four hundred dollars for taxes, could not be held on any reasonable interpretation of the language to be equivalent to an averment that the income from the property during the three days was more than sufficient to pay the rent and taxes ; and that, too, in the face of a rule that a pleading is to be construed more strongly against the pleader, and that all reasonable, doubts arising on the face of the pleading are to be resolved against him.

We are of opinion that the complaint is defective in substance for a failure to aver a breach of the covenant, and that the general demurrer to it ought to have been sustained. Moreover, there is reason to infer that the cause was tried on the theory that the averments of the complaint already quoted referred to the last year of the entire term, counting back from September, 1869. Wo infer so from the fact that it was stipulated at the trial that during that year the income from the property was more than sufficient to pay the rent and taxes. But on our construction of the lease this was an immaterial circumstance, and we think the ends of justice demand that the cause should be tried anew on amended pleadings.

Judgment and order reversed and cause remanded, with an order to the Court below to sustain the general demurrer to the complaint.

Mr. Chief Justice Wallace did not express any opinion.