Wicker v. Lewis ( 1866 )

Mr. Justice Lawrence

delivered the opinion of the Court:

In the lease from Wicker to Lewis, Page & Co., the following clause was inserted:

“ And it is understood and agreed, by and between the parties hereto, that the said parties of the second part (Lewis, Page & Co.) are to take the said stores in their present condition, and without any other finish but the putting in of two falls, one stairway, one water-closet, and one gas-pipe to the office, which things are to be done by the said party of the first part; all other work that may be needed or desired in and about said stores is to be made and done by the said parties of the second part at their own expense.”

At that time the stores were completed, except the floors in the basement, and the four items enumerated in the foregoing provision. Subsequently, Wicker’s architect laid these floors and Wicker paid the bill. He now insists that the amount is chargeable to the lessees.

We are of opinion that the proper construction of the agreement is that given to it by the Circuit Court.

The lessees could not have compelled the landlord to lay the basement floor, hut, as he voluntarily did it, in accordance with his own architect’s plan, and without any agency, or request, or interference, on the part of the appellees, there is no ground for charging them with the cost. The undoubted meaning of the last clause of the agreement is, that they were to have done whatever work might he needed or desired by them at their own expense. It cannot have been the understanding of the parties that, whatever work upon the four stores the landlord might have considered needful or desirable, was to be done at the cost of the tenants. Such a construction would have placed then- purse wholly at his discretion. That this was intended we cannot believe, and the language used does not require an interpretation so utterly improbable.

There is no proof in the record that the tenants either needed or desired this work to be done.

Judgment affirmed.