W. S. Quinby Co. v. Sheffield , 84 Conn. 177 ( 1911 )

It is alleged among the reasons of appeal that the trial court erred in reaching, from the facts found, the following conclusions stated in the finding, and which form the basis of its judgment in favor of the defendants: —

"1. That under the terms of the agreement between the defendants and said Fields Company of February 13, 1909, and under the terms and provisions of the deed, Exhibit 1, it became and was the duty of said Fields Company to pay all of said taxes in question.

"2. That said Fields Company paid said sum of $61,717.49, and the defendants received and retained the same, as a part of the purchase price to be paid for said property in question, pursuant to the terms of said agreement of February 13, 1909.

"3. That the defendants were under no obligation to said Fields Company, or the plaintiff as its assignee, to pay any part of the taxes in question."

These conclusions constitute the trial court's interpretation of the language of the agreement of February 13th and the deed of February 18th, read in the light of the facts and circumstances under which they were made. Such interpretation, as we understand it, is, in effect, that the W. T. Fields Company were required to pay the taxes in question, first, as a part of the rent which the grantee had agreed to pay, and second, as taxes which the grantee had assumed to settle and save the defendants harmless from.

All the facts, including those from which inferences or conclusions were drawn by the trial court, are either admitted by the pleadings or are stated in the finding. We have also before us all the evidence by which such facts were proved, and from which all such inferences were drawn. Such evidence is wholly documentary, and is substantially all set forth in the foregoing statement of facts. Counsel for the defendants admit in their brief that "there was no agreement between the parties as to the payment of taxes other than that contained in Exhibit A (the agreement of February 13th), Exhibit 2 and Exhibit 1" (the deed of February 18th and the accompanying memorandum of adjustment of rents). The controlling question, therefore, in this appeal is, did the trial court correctly interpret the agreement of February 13th and the deed of February 18th? This question is one of law.

In Beckwith v. Farmington, 77 Conn. 318, 320,59 A. 43, this court said: "The legal sufficiency of the documents to prove the essential facts was, in this case, a pure question of law; they were not dependent upon parol evidence in any way such as to present a mixed question of law and fact." In Dawson v. Orange,78 Conn. 96, 119, 61 A. 101, we said: "The controlling evidence before the jury was of a documentary character. The construction of the various deeds and records, upon the undisputed facts, was for the court." In Knowlton v. New York, N. H. H.R. Co.,72 Conn. 188, 194, 195, 44 A. 8, this court said: "The terms of the deed are before us, and also the situation of the premises and the acts of the parties in the nature of a practical construction of the right reserved. The main question is as to the meaning of the words they used, and proceedings in error would often be but an illusory remedy, were an appellate court to be considered as bound, in determining such a question, by the opinion of the court below, whenever that is based in part on circumstances attending or following the transaction, notwithstanding these are fully spread upon the record."

The inquiry in the present case is, was the W. T. Fields Company, by the terms of the written agreement and the deed, legally required to pay the taxes assessed in 1908 to the amount of $769.66, after having, prior to February 24th, paid to the defendants the $10,000, and on March 5th the $61,717.49, and after the delivery and acceptance on the last-named day of the deed of February 18th?

The only specific sum named in the deed as the measure of the value of the land is $70,050. This sum is also expressly stated in the agreement to be the "value of the premises," and as the sum to be net to the grantors, and $70,000 is named, both by the grantor and the grantee, in the letters of January 19th and February 4th, in the former as the sum to be "net to you" (the defendants), and in the latter as the sum to be "absolutely net to us" (the defendants).

But the defendants argue that these expressions are consistent with their present claim, first, because it is admitted that, in addition to the $70,050, the Fields Company agreed to pay the proportional part of the rent which had accrued March 1st, and also that it agreed to pay the taxes, in addition to the $70,050 and the rent; and second, because the rent to be paid as such is a sum made up of two sums, to wit, the stated amount named in the leases, and the amount of the taxes added thereto. In other words, the defendants claim that the grantee was required by the terms of the deed and agreement not only to pay the $70,050, but also to pay the taxes, first, as a part of the rent which it had assumed to pay, and again, as the taxes which it had agreed to pay. This claim, of course, involves the contention that payment of the taxes as rent was not payment of the taxes. This claim is not sustained by the language of agreement and deed.

The taxes to be paid by the Fields Company were a known sum, stated in the memorandum of adjustment of rent, assessed against the defendants, and due and collectible by statute from them before the deed was delivered. If, in addition to the sum of $61,717.49 paid by the Fields Company to the defendants on March 5th as the balance of the value of the land plus the amount of the rent, the Fields Company was also to pay the sum of $769.66 for the taxes assessed in 1908, why was the Fields Company not required to pay this additional sum before the deed was delivered?

It may be admitted that the taxes which the leases required the tenants to pay in addition to the fixed sum named were in one sense "rent." Whatever a tenant is required to pay as a compensation for the right to occupy land may generally be termed rent. But it by no means follows that one who under a covenant to pay rent, of which taxes are a part, does not in the payment of such rent perform a further covenant to pay the taxes. We think it should be held that he does, unless it clearly appears to have been the intention of the parties that the same taxes should be paid twice, once as a part of the rent, and again as the taxes covenanted to be paid.

The instruments before us do not show such an intention. The agreement states that the assumption of the leases, and the taxes and assessments of 1908, as a part of the consideration, is in addition to the $70,050, but not that the assumption of the taxes is in addition to the payment of the $70,050 and the payment of rent, which includes taxes.

It is true that the document delivered with the deed, and entitled "Memorandum of adjustment of rent," includes the taxes in question, but it states in separate items specific sums as the annual rents, and specific sums as the 1908 taxes. The fact that in this memorandum there is no charge, but, on the contrary, a credit to the Fields Company of $30 for the rent and taxes paid by Malley, very clearly indicates that it was not intended that those taxes of $108.84 should again be paid by the Fields Company either as rent or as taxes. We think it clear that this memorandum of adjustment of rent was filed with the deed, in accordance with the language of the agreement of February 13th, for the purpose of informing the Fields Company, in connection with the information furnished by the deed itself, of the entire amount which under the agreement it was to pay, and that amount was the consideration named in the deed, $70,050, and the sum named in the memorandum, of 1,667.49 for rent and taxes. Neither the deed nor the memorandum name any other sum to be paid by the Fields Company.

We find nothing in the conduct of the parties under the described prior leases and agreements between the defendants and the other tenants, and on the basis of which the rents to be paid by the Fields Company were adjusted, to sustain the defendants' claim. The tenants Moeller, Rogers and Webb, and Malley, by the terms of their respective leases, agreed that their annual rent should be a named sum and taxes, and further covenanted to pay all taxes and assessments. But it does not appear that any of them ever paid or were ever asked to pay the same taxes twice, once under the covenant to pay rent, and again under the covenant to pay taxes; on the contrary, it would rather appear from paragraph 12 of the finding that the only sum these tenants paid for the use of the premises leased by them was the specific sum named in their respective leases as rent, and also the amount of the taxes.

The plaintiff offered to prove that these tenants did not so pay them twice, and for that purpose offered in evidence certain receipts, signed by the defendants' claimed agent, showing the payment and acceptance at different times of a certain sum as rent, which sum did not include taxes, and payment and acceptance at other times of a certain sum as taxes, which was the amount of the taxes only. These receipts were objected to upon the ground that these were not transactions between either the plaintiff and defendants or the Fields Company and the defendants, and the court excluded them as remote.

The ruling that they were remote was erroneous in so far as it excluded, upon that ground, the receipts given since 1902, when the adjustments of rent were made by the defendants with these tenants. Although neither the plaintiff nor the Fields Company were parties to the receipts, yet by the agreement and deed of 1909 the Fields Company assumed these very leases, and was thereby required to do what, by the terms of the leases, the tenants were required to do as to the payment of rent and taxes. Since there was a dispute as to whether the term "rent," as used in the leases, referred to the fixed sum named in the leases, independently of the taxes, or was intended to include the stated sum and the taxes, the construction placed upon it by the acts of the parties to the leases was admissible.Knowlton v. New York, N. H. H.R. Co., 72 Conn. 188,48 A. 8; Raymond v. Nash, 57 Conn. 447, 452,18 A. 714.

It is argued that the judgment of the trial court must stand, because in paragraphs 19 and 20 of the finding it has conclusively found as a fact what the intention of the parties to the agreement and deed in question was. In the reasons of appeal the plaintiff asks for a correction of the record by striking out these paragraphs.

Of course, the intention of the parties to a written agreement does not control, unless that intention is expressed in the written instrument. Bartholomew v.Muzzy, 61 Conn. 387, 392, 23 A. 604. But these paragraphs do not purport to state the intention of the parties, but only the understanding of the Fields Company. Neither do they describe any act showing a practical construction of the agreement and deed by the parties, or either of them. Nothing more is stated in these two paragraphs than that the Fields Company understood, first, that when it paid $61,717.49 it was the correct amount due the defendants; second, that the defendants were not required to pay the 1908 taxes; and third, that the Fields Company, after the payment of the $61,717.49, was required to pay said taxes.

We think the trial court did not err in finding such first understanding, as we think that understanding of the Fields Company was clearly correct. As to the other two, as the evidence shows no direct statement of such understandings by the Fields Company, they are found as inferences drawn by the court from the contents of the documents above set forth. As there is no evidence showing more clearly the understanding of the Fields Company regarding the payment of the taxes than is found in the agreement and deed and leases themselves, we think these findings were based upon, or intended as the court's construction of, these instruments. As such conclusions, they are reviewable. As findings of the mere opinion of the Fields Company as to the requirements of the agreement and deed, they are without weight. Crosby v. Mason, 32 Conn. 482,487.

It is said that the acceptance by the Fields Company, after having paid the $71,717.49, of a deed which provided that the grantee should assume the taxes and assessments "for the year 1908 and thereafter," supports the construction contended for by the defendants. This language is not a statement that the grantee shall thereafter pay the taxes and assessments of 1908. It is a statement that the grantee assumes the taxes assessed in 1908, and those assessed after 1908, which latter the grantee as owner would, of course, be required to pay. And, further, the provision is that the grantee assumes the taxes of 1908, not in addition to the $71,717.49, which had then been paid, but in addition to the $70,050. If the acceptance of the deed containing this provision is to be construed as a promise to pay the 1908 taxes after the delivery of the deed, it should also be construed as a promise to pay thereafter the rent, which it is conceded had already been paid. The language is, "subject, also, to the leases now thereon," and "taxes and assessments for the year 1908, and thereafter, all of which said grantee assumes," etc. But the payment of the $61,717.49 and the delivery of the deed on March 5th are to be regarded as simultaneous acts.

It is not clear why the defendants' attorneys, on March 8th, after the payment of the $61,717.49 and the delivery of the deed, mailed to the Fields Company the "1908 tax bill," the receipt of which the Fields Company acknowledged by their letter of March 10th. The only reason given by the attorneys for so doing was that they found it "amongst the papers in our file on the subject of this property." The Fields Company did not then own the property, having quitclaimed it to the plaintiff on March 5th. The letter contained no request for the payment of the taxes, nor the acknowledgement of any promise to pay them. If, from the description of the bill as "1908 tax bill," it is to be assumed that it was a bill from the tax collector for the taxes assessed in 1908, it was probably not a bill against the Fields Company, nor against the plaintiff, but against the defendants. It may have been sent as a bill supposed to have been paid, or to be thereafter paid, by the defendants, or of the taxes which the Fields Company had paid to the defendants, sent to aid the Fields Company in obtaining from the tenants the reimbursement for the money that Company had paid for these taxes, and which, from the notices and assignments above stated, the Fields Company or the plaintiff was entitled to receive. The mere fact that this bill was so sent and acknowledged, does not furnish a sufficient reason for sustaining the construction of the agreement contended for by the defendants.

The agreement of February 13th contemplated that the defendants should receive $70,050 as the value of the premises in question on March 1st, 1909, as the net purchase price which the defendants were to receive, and, in effect, the net sum which the Fields Company was to pay. The defendants were to receive more than $70,050, but the sum to be received in excess of that sum was money which they regarded as having been earned by the property prior to March 1st, namely, the fixed sums named in the leases as rent, and the amount of the unpaid taxes which the tenants had in their leases agreed to pay. That amount was definitely fixed by the memorandum as $1,667.49, and that sum with the $70,050 was the entire amount which the Fields Company were required to pay, either directly or indirectly. The Fields Company were in effect to pay but $70,050 for the premises. That was the value placed by both parties upon the property itself. The Fields Company was to pay more than that sum to the defendants, for the reason that it was to pay to them the earnings of the property, as above stated, up to March 1st. This arrangement, however, was not for the benefit of the tenants, but to secure payment of this sum to the defendants before they parted with their title, and was to be repaid to the Fields Company by the tenants under the notices given to the tenants and the assignments given to the Fields Company. When so repaid the Fields Company would have paid only the net sum of $70,050 for the property.

The Fields Company has, pursuant to the agreement, paid the taxes in question to the defendants by the payment of the $1,667.49 in addition to the $70,050. There was an implied promise that the defendants would pay these taxes to the municipal authorities. By their failure to do so the plaintiff has been compelled to pay the sum of $802.75, and is entitled to reimbursement from the defendants for such payment.

There is error in the judgment, and it is reversed, and the case remanded with direction to render judgment for the plaintiff for $802.75, with interest from November 19th, 1909.

In this opinion PRENTICE, RORABACK and WHEELER, Js., concurred.