Murphy v. Schwaner

Want of title in the plaintiffs to the premises at the time the lease was delivered is not a defense to this action. The plaintiffs acquired title September 24th, and before the commencement of the term on November 15th. The title acquired by the plaintiffs September 24th, rendered the previously delivered lease effective. Salisbury Savings Bank v.Cutting, 50 Conn. 113, and note, 122; Wheeler v. Young,76 Conn. 44, 48, 55 A. 670. The lessees do not claim that the plaintiffs' title was defective. They are estopped from doing so; Camp v. Camp, 5 Conn. 291,300; and the defendant's guaranty of the payment of rents by the lessees imports an agreement, which he cannot deny, that the lease was a binding obligation upon the parties to it. Remsen v. Graves, 41 N.Y. 471. From the nature of the contract of a guarantor or a surety, his liability is ordinarily measured by that of the principal. Bernd v. Lynes, 71 Conn. 733,43 A. 189.

It is immaterial that defendant signed the guaranty subsequent to the drafting of the lease and to the signing of the lease by the plaintiffs. The lease and guaranty were finally delivered and went into effect at the same time, and before liability was incurred under the lease. They will be deemed to have been executed contemporaneously;Maher v. Building Loan Asso., 79 Ill. App. 231;Kennedy Shaw Lumber Co. v. S. S. ConstructionCo., 123 Cal. 584, 56 P. 457; and therefore no other consideration for the guaranty was required than that moving between the plaintiffs and the lessees. Bickford v. Gibbs, 8 Cush. (Mass.) 154.

We agree with the claim of the defendant, that the extent of his liability is to be measured by the language of the lease and of the guaranty, and that any material change, without his consent, in the terms of the written contract which he guaranteed, would effect his discharge.Village of Chester v. Leonard, 68 Conn. 495,508, 37 A. 397; Stearns on Suretyship, § 146. The real question upon this branch of the case is, does it appear that the terms of the written lease have, by the agreements and acts of the plaintiffs and the lessees, been thus materially changed?

It is the defendant's contention that by an agreement between the plaintiffs and the lessees, not contained in the lease, and made without the defendant's consent, by which it was arranged that the plaintiffs should not construct a front to the building, and that the front should be built by the lessees, they not only changed the provision of the lease, that the term should begin when the premises were ready for occupancy, but relieved the plaintiffs from the duty imposed upon them by the lease of making certain changes which were necessary to render the premises ready for occupancy, and imposed the duty of making them upon the tenants.

The trial court has found that the premises were ready for occupancy on the 15th of November. This is in effect a decision that upon the facts found the premises were then "ready for occupancy," within the reasonable meaning of those words as used in the written lease. Our inquiry then is, did the court err in so holding?

These words of the written lease are of course to be read in the light of the circumstances surrounding the parties, and of the other provisions of the lease. While parol evidence was inadmissible to contradict or vary the terms of the written lease, such evidence could properly be received to show the meaning of these words, as understood by the parties at the time the lease was made, and the meaning which may properly be given to them when used in connection with the leasing of premises for a certain business. Parker v.Selden, 69 Conn. 544, 552, 38 A. 212; In re Curtis-CastleArbitration, 64 Conn. 501, 514, 30 A. 769;Hildreth v. Hartford, M. R. Tramway Co., 73 Conn. 631,636, 48 A. 963.

The law does not define the precise condition in which premises must be, in order to render them "ready for occupancy." That depends largely upon the purpose for which the premises are to be used. Different conditions in buildings would be required to render them ready for occupancy as places of residence and places of business. These premises were leased to be used as a moving-picture theater. Just what was required to render them ready for occupancy for that purpose, or what constitutes the fixtures of a moving-picture business, we are unable to say, except as it appears from the record before us. The plaintiffs did not agree to furnish or construct fixtures for the moving-picture business. The lease expressly provides that they shall be furnished by the lessees. It is apparent from the language of the lease that the plaintiffs were not to make all the changes in the buildings, and construct the appliances and fixtures necessary to enable the lessees to at once proceed with their exhibitions at the commencement of the term of the lease, which was to be when the premises were "ready for occupation." The lease by its language clearly shows that the parties contemplated that alterations necessary to the actual conduct of this business were to be made by the lessees at their own expense. By the words "ready for occupancy," we think was meant that the plaintiffs should put the premises in such condition that the lessees could take possession and install, at their own expense, the fixtures and appliances peculiar to the moving-picture business and necessary to enable them to proceed with their exhibitions. Prior to the making of the written lease it was in effect understood and agreed between the plaintiffs and the lessees in what condition the premises must be, in order to be "ready for occupancy" and for the lessees' term to begin. By such agreement they were to be ready for occupancy when the building in the rear was constructed, and the front building altered in accordance with certain agreed plans and specifications and so as to connect with the rear building and make with it one continuous room; and the building was to be left by the plaintiffs without a front, because it was agreed that the front "was one of the fixtures of the moving-picture theater business," and was therefore to be put in by the lessees.

This agreement between the plaintiffs and the lessees was made prior to the making of the written lease, and the words "ready for occupancy" and "alterations in the premises that are necessary in the conduct of their business" were presumably used to express this previous understanding. It was not necessary that the lease should state particularly what the plaintiffs were required to do in order to render the premises ready for occupancy. The language of the lease is sufficiently comprehensive to include the actual intention and previous understanding of the parties to it.

On the 15th of November the plaintiffs had rendered the premises "ready for occupancy" in accordance with the meaning of those words in the lease, and to the entire satisfaction of the lessees. The terms of the contract which the defendant guaranteed were not altered by the agreement or conduct of the plaintiffs and the lessees.

There is no error in the rulings or decision of the trial court.

In this opinion the other judges concurred.