Gray v. Maier & Zobelein Brewery

ALLEN, J.

Proceedings in unlawful detainer. Judgment for defendants, from which, and an order denying a new trial, plaintiffs appeal.

It appears from the record that plaintiffs’ predecessor in title, as party of the first part, on September 28, 1901, executed to defendants a lease for the premises described for the term of two years, commencing on the first day of October, 1901, and ending on the first day of October, 1903; which lease contained a clause that the second party should not let or underlet the whole or any part of the premises without the consent of the first party, and a further provision that, at the expiration of the lease, the party of the “first part” should have the privilege of leasing the said premises for a further term of one year, commencing on the first day of October, 1903, and ending on the first day of October, 1904. The court finds that defendants sublet said premises shortly after the commencement of the term, which was known to plaintiffs’ grantor and acquiesced in by her thereafter until she transferred the same to plaintiffs; that plaintiffs’ predecessor in interest and plaintiffs at all times acquiesced therein and received rent, knowing of such subtenancy. Before the 1st of October, 1903, plaintiffs served notice upon defendants that they would not exercise the option of leasing the premises for another year, and demanded possession at the expiration of such lease. On October 1, 1903, defendants notified plaintiffs in writing of their election to hold said premises for a year, commencing October 1, 1903. Afterward plaintiffs served another notice, claiming possession on account of such subletting, followed by a three-day notice to quit. The court, in its final

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judgment, found that the words “first party,” used in said lease in connection with the option, were inadvertently used, and the words “second party” were intended; and ordered that said lease be corrected accordingly, and gave judgment for defendants.

The first contention of appellants is that the mistake was not shown to be mutual; and further, that defendants had knowledge thereof for nearly two years, and that such mis-' take is not available as against the plaintiffs; and further, that a defense based upon such mistake could not be set up in a special proceeding. A most casual reading of the lease will demonstrate that an error was made in the designation of the parties to whom the option was granted. Beading the lease literally, it sought to confer an optional right upon the first party which she possessed under all circumstances; one needs no optional or other contract right to confer the privilege to grant a lease of .his own. In addition, the right ‘ ‘ to lease” by the ordinarily accepted meaning of terms is unto the lessee. The owner or first party grants the lease, lets or demises the leased premises and it is the second party who leases. These considerations would lead anyone examining the lease to see at once that the intention was to grant an optional right to the second party, and that the word “first” was an error of the scrivener. Assuming this proposition, then, appellants and their predecessor, when acquiring this property, were bound by all of the equities existing between the vendors and the tenants, and, having knowledge of a tenant’s possession, to act upon the inquiry suggested thereby and ascertain the tenant’s rights and equities.