From a judgment dismissing the action following the sustaining without leave to amend of a demurrer to the second amended complaint, plaintiff appeals.
On July 26, 1946, plaintiff as lessor and defendant as lessee entered into a lease agreement whereby defendant leased the Hill Street Lot for a period of three years from October 1, 1946, for the purpose of operating a parking business thereon. Paragraph 17 of the lease
The sublease for the show window was executed concurrently with the Hill Street lease and by its terms expired July 31, 1949.
On December 17, 1947, the parties executed a three year extension of the lease on the Hill Street Lot on the same
On August 15, 1949, defendant advised plaintiff in writing that its (defendant's) lease on the Broadway Lot would expire August 31, 1949, and that it would not extend or renew the lease upon its expiration but would surrender possession of the premises. Thereupon, on August 20, 1949, plaintiff served upon defendant, pursuant to the provisions of paragraph 5 of the extension of lease on the Hill Street Lot, a written notice of "Election to Cancel and Terminate Lease and Extension of Lease." Defendant having refused to surrender the premises, plaintiff filed this action for unlawful detainer.
Plaintiff contends that the four instruments, the 1946 Hill Street lease, the 1946 sublease on the Broadway Lot, the 1947 extension of the Hill Street lease and the 1947 option to extend the sublease must be read together; that the cancellation clause must be considered in relation to the four documents and when read with the whole transaction it means plaintiff may cancel the Hill Street lease if it should lose the show window on the Broadway Lot during the six year reciprocal lessor-lessee relationship; that the four instruments indicate a reciprocal relationship; that since defendant was given the right to cancel the Hill Street lease if it were not in possession of the Broadway Lot, and since the option expressly stated it was conditioned upon defendant's being in possession of both lots, it would be inconsistent for plaintiff not to have the right to cancel the Hill Street lease if defendant did not renew the Broadway lease; that if there is any inconsistency between the 1946 documents and the 1947 instruments or an inconsistency between the purpose of the 1947 option to extend the sublease and the 1947 extension of the Hill Street lease, parol evidence may
Moore, P.J., and McComb, J., concurred.
"Lessor and Lessee further agree that in the event the Lessee no longer has the right to the premises on Broadway now used by it as a parking lot, which premises are contiguous to and immediately East of the premises here demised, and it loses that right through no fault of its own, then Lessee may, at its option, terminate this lease upon sixty (60) days written notice of its intention so to terminate."
"Contemporaneously with this agreement, Lessee has executed a separate option agreement under the terms of which this Lessor is given the option to renew its sub-lease on the premises at 845 South Broadway in the event that Lessee either execute a new lease or renew or extend its present lease on the demised premises at 845 South Broadway, which option is incorporated into this Extension of Lease by reference and by such reference made a part hereof.
"Lessor and Lessee agree that if for any reason other than fault on its part Lessor herein shall be legally deprived of its right to said show window under said sub-lease agreement, or any extension or renewal thereof, that thereupon it, the Lessor hereunder, or the Lessee hereunder shall have the right to cancel or terminate this Extension of Lease by ninety (90) days written notice to the other of its election so to do.
"6. Lessor and Lessee further agree that in the event that Lessee no longer have the right to the premises on Broadway, now used by it as a parking lot, which premises are contiguous to and immediately east of the premises hereby demised, and it lose that right through no fault of its own, then Lessee may, at its option, terminate this lease upon sixty (60) days written notice of its intention so to terminate."