The plaintiff, Atwood Collins II, doing business as the River Valley Development Company in Middletown, the defendant's lessor, sought in the first and third counts of his complaint to recover additional annual rent claimed to be due pursuant to a lease provision providing for the payment of additional rent on the institution of foreclosure proceedings against the leased premises by a mortgagee and to recover rent from the defendant for the privilege of customer parking.
The defendant, Sears, Roebuck and Company, in its answer, special defenses to counts 1 and 3, which are the only counts left in the present appeal, and
On August 1, 1963, the River Valley Development Company, a forerunner of the plaintiff, leased certain premises in Middletown to the defendant. The lease, which included a rider, was negotiated with the defendant, Sears, Roebuck and Company, through its real estate department and its legal counsel; and the lease as finally executed was prepared
The pertinent portion of paragraph 15 of the lease, which gave rise to the dispute concerning payment of an additional rental sum in the event of the institution of a foreclosure proceeding, is set forth in the footnote.
On May 21, 1968, a foreclosure suit was instituted against the lessor by the Hartford National Bank and Trust Company, mortgagee of the demised premises. The defendant, on demand of the plaintiff, made the payments provided for in paragraph 15 of the lease from the date the foreclosure action was instituted until November 17, 1970. On March 24, 1969, the mortgage held by the Hartford National Bank, which was the subject of the foreclosure
The court concluded that the language of paragraph 15 of the lease was clear and definite; that it plainly stated that in the event of the institution of a foreclosure action, the defendant was obligated to pay the additional rent provided for by paragraph 15 during the term of the lease, irrespective of the state of the foreclosure action which initiated the additional rent; and that it was not against public policy. We agree with the court's conclusions.
We have stated that in construing a written lease, which constitutes a written contract, the intention of the parties, which must be gathered from the language of the instrument in light of the circumstances existing at the time of its execution, is controlling, the ordinary meaning of language must be followed unless a technical or special meaning is clearly intended, and an unexpressed intent is of no legal significance. Perruccio v. Allen, 156 Conn. 282, 285, 240 A.2d 912; 51C C.J.S., Landlord and Tenant, § 202 (2); 49 Am. Jur. 2d, Landlord and Tenant, § 141; 17 Am. Jur. 2d, Contracts, § 241. When the plain meaning and intent of the language is clear, a clause in a written lease cannot be enlarged by construction. There is no room for construction where the terms of a writing are plain
The interpretation of a contract must be made in accordance with the terms employed in the instrument and a court cannot by that means disregard the words used by the parties or revise, add to, or create a new agreement. Although the defendant would like to add a contigency to the lease which would provide for termination of the defendant's liability for the payment of additional rent in the event of a subsequent withdrawal of the action, we cannot so interpret or construe the lease. Where a certain contingency is provided for in a contract, the court cannot import into the contract some other and different provision for the same contingency, nor can the construction of an agreement, because of the unreasonableness of its terms, be changed to vary the express limitation of its terms. Whitaker v. Cannon Mills Co., 132 Conn. 434, 440, 45 A.2d 120. "We assume no right to add a new term to a contract, though it were clear that had the attention of the parties been called to it in all probability it
The defendant does not argue that the so-called contingency was left out of the lease in error or by mistake, but that, on the contrary, failure to include another contingency created an ambiguity. It is significant, however, that the defendant does not dispute or attack the findings that: The lease was negotiated through the real estate department of the defendant Sears, Roebuck and Company and its legal counsel; the negotiations for the lease commenced with the defendant submitting its standard lease form to the plaintiff; the lease which was finally executed was prepared by the defendant's legal counsel; and the defendant stated the purpose of paragraph 15 was to aid the plaintiff in obtaining a larger mortgage because the value of the lease would be computed on the basis of the additional rent provided for in paragraph 15 rather than on the ordinary rent. The finding of the court that "the final lease included modifications to the defendant's standard lease, one of which was paragraph 15 which was inserted at the direction of the defendant" is supported by the evidence printed in the
We do not agree with the contention urged on us by the defendant that the rent escalation provision of paragraph 15 of the lease is void as against public policy. The defendant argues that to uphold the validity of this clause "would allow a landlord and his mortgagee to collusively institute a foreclosure proceeding merely to trigger the additional rent provision, permit the suit to remain dormant or withdraw it altogether, and collect the additional rent until the end of the lease term." The defendant, however, agrees that it does not make such a charge in the present case but argues that it could take place in another instance. Ordinarily, the parties to a lease may incorporate by mutual agreement a special provision fairly obtained, which expressly changes the obligations or responsibilities in the agreement and such a provision will not be held contrary to public policy. Samelson v. Harper's Furs, Inc., 144 Conn. 368, 373, 131 A.2d 827. The
The defendant assigns error in the trial court's conclusion that the plaintiff has maintained a parking facility in accordance with the terms of the lease and claims that the plaintiff failed to provide facilities for parking pursuant to paragraphs 48 and 59 of the lease, contending that such failure is a material breach of the lease which, therefore, warrants rescission. In addition, the defendant claims
The defendant Sears, Roebuck and Company was only one of the tenants in the Riverview Shopping
The defendant argues in .its brief that the availability of 600 parking spaces "for use by the defendant's customers" is an express condition of the lease; that it is an erosion of its rights to permit use of the space by monthly parkers who work in the area; and that it constitutes a breach of a material condition of the lease justifying a rescission of the entire agreement. On the contrary, paragraph 59 provides only that "a parking area for no less than six hundred (600) cars be constructed and maintained in the said shopping center" and paragraph 48 provides that tenant's customers shall have the right to park there in common with the other tenants and their employees, agents, customers and invitees.
The lease, dated August 1, 1963, recites that the city of Middletown was in the process of erecting a multi-level parking facility on land owned by it, which was designated parcel D. In the stipulation of the parties it is agreed that the town of Middletown (the parties have used the words "city" and
Paragraph 59 of the lease, designated as a rider, which is the more detailed and specific of the two lease provisions relative to customer parking, contained two requisites which have been met: The parking area has been constructed and is being maintained by the city or town of Middletown, the owner and operator of the facility. The court must construe the provisions in a lease in accordance with the intention of the parties gathered from the language used in the light of the surrounding circumstances existing, and known to the parties, when the lease was made. Bridge-Mile Shoe Corporation v. Liggett Drug Co., 142 Conn. 313, 319, 113 A.2d 863; 51C C.J.S., Landlord & Tenant, § 337 (c). The recitation in the lease dated and executed August 1, 1963, the stipulation of the parties and the finding of the court, recited above, attest to the fact that the lessor has complied with the requirement that
We agree with the conclusion of the court that the plaintiff complied with the third requisite of paragraph 59, viz., that the tenant's customers at all times during the term of the lease have the right to park in the area without any charge for the first hour of parking. The conclusions of the court are supported by the following facts which are not disputed. The parking area located in parcel D consists of two levels and the upper level is uncovered. The number of parking privileges extended to customers of Sears, Roebuck and Company and First National Stores according to the validations were as follows: 1966—116,610; 1967—150,185; 1968— 159,156; 1969—161,174; 1970—142,467. From July 1, 1970, until May 24, 1971, a period during which First National Stores did not occupy the shopping center, the number of customer validations decreased to 100,493. The parking facility has not been filled since the 1969 Christmas shopping season. The defendant's customers are permitted to use the facility without charge, for the first hour of parking, and the few occasions when the facility was filled occurred on Fridays during the late afternoon and evening hours. In addition, the court found that since 1965 the parking facility has been open and available to the defendant's customers for parking at all times except during the Christmas shopping season in 1967, 1968 and 1969, when the parking facility was filled on no more than six occasions and for periods of no longer than ten minutes. This finding is supported by the evidence, properly admitted and printed in the appendices to the briefs. Practice Book § 718; Consiglio v. Warden, 160 Conn. 151, 158, 276 A.2d 773.
The defendant argues in its brief that in the event of a breach of a condition of a lease so fundamental in its result that the breach defeats the object of the undertaking of the parties, equity will relieve the injured party by rescinding the entire agreement. The defendant strongly relies on the case of Neuschtat v. Rosenthal, 87 Conn. 400, 404, 87 A. 741. That case, however, is distinguishable from the case before us. In the Neuschtat case the lessors agreed to construct and repair buildings and provide tools to work the leased premises which the court concluded was the principal consideration for the lease. The court held that the character and persistence of the lessors' breach created an impossibility for the lessees of working the premises at a profit so that they were entitled in law to treat the lease as repudiated. In that case there was a failure of the principal consideration resulting in an impossibility, thereby justifying rescission of the lease. We recognize the fact, as argued by the defendant, that the availability of parking is a prerequisite to the successful operation of a retail store in today's automobile-oriented society, but after the parking area in parcel D was constructed and maintained the plaintiff-lessor only obligated himself to guarantee that the tenant's customers should at all times during the term of the lease have the right to park without any charge for the first hour of parking.
Rescission is not warranted merely for a failure exactly to perform but only for an unjustified default to perform the basic terms of a contract. Speed v. Bailey, 153 Md. 655, 660, 139 A. 534. Before a default of one party will give the other the right of rescission, the failure to perform an essential
In its brief the defendant argues that the plaintiff has allowed noncustomer monthly parkers to occupy a substantial portion of the available spaces and assigns as error the trial court's refusal to find that "the elimination from defendant's use of 103 to 350 of the parking spaces constituted a partial eviction of defendant" extinguishing its liability for parking rent. The test of when an act constitutes a partial eviction is whether it results in a deprivation of some right or appurtenance to the premises to which the tenant is entitled. 49 Am. Jur. 2d 316, Landlord & Tenant, § 301. There is no dispute that the parties never intended that the defendant was to have the entire 600 parking spaces exclusively. Under paragraphs 48 and 59 of the
The conclusion reached by the court that the defendant failed to establish a partial eviction so that there is no suspension of the obligation to pay rent must stand since it is logically and legally consistent
There is no error.
In this opinion the other judges concurred.
"Landlord also covenants that the parking areas for the shopping center will be multi-level in construction and that the plans therefor will have the complete approval of the City of Middletown, both of these representations being conditions precedent to the operation of this lease."