Royal Grocery Co. v. Oliver

KNIGHT, J.,

pro tem.

This is an appeal by plaintiff from a judgment sustaining a demurrer to plaintiff’s complaint, without granting leave to amend, in an action brought for specific performance growing out of an option for the renewal of a lease of real property.

On January 15', 1919, the defendant, as lessor, entered into a lease with plaintiff, as lessee, whereby defendant leased to plaintiff a store in the city of Oakland, for the term of two years commencing on February 1, 1919, and ending on January 31, 1921. The lease gave the lessee an option to renew the same, with changed rentals, for a further period of three years, the new term to commence on January 31, 1921, but with respect to this renewal the lease provided: “It is further agreed and understood, however, that in the event the lessee herein shall fail to give the lessor herein a written notice of its election to exercise this option for a three-year renewal of this lease within ninety days prior to the expiration of this lease, this option for a three-year renewal shall thereafter be and become null and void and of no further force and effect without notice from the lessor.”

Notice of the exercise of the option to renew the lease was given to the lessor on November 13, 1920, which was seventy-nine days before the lease expired.

The controversy between the parties arises over the construction which shall be given to the term “within ninety days prior to the expiration of this lease.” Appellant’s contention is that it had the right at any time during the ninety days next preceding the expiration of the lease to serve the notice of the exercise of the option. Respondent’s claim is that said notice should have been served at least ninety days prior to the expiration of the lease.

Viewing the option in the light of other options such as are customarily used in leases, we can arrive at no other conclusion than that it ivas the intention of the parties here that the lessee should give the lessor at least ninety days’ notice of its intention to continue the tenancy. To

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hold otherwise would, in our opinion, he giving the option an unreasonable and unjust interpretation.