Simen v. Sam Aftergut Co.

THE COURT.

The plaintiff’s complaint separately stated two causes of action against the defendant—one for damages for the alleged breach of a covenant to erect improvements in lieu of the first year’s rent reserved in a contract of lease; and the other for damages for the alleged destruction by the defendant of certain improvements which were part and parcel of the leased premises. Judgment was entered for the plaintiff upon the first cause of action in the sum of one hundred and ten dollars, and upon the second cause of action in the sum of two hundred and fifty dollars.

The lease in question, which was pleaded

in haec verba,

contained the usual covenants of a contract for the letting of real property, and in addition provided and required that the lessee, the defendant herein, should, in lieu of the payment of the rent reserved for the first year of a three year term, improve the leased premises “by moving and erecting thereon such improvements as it shall see. fit, to revert to the lessor as hereinafter provided.” This covenant of the lease evidently referred to and was related to a following clause of the lease, which provided that “ ... If at any time during the term herein created said lessee shall elect to vacate said premises, it may, upon payment to the lessor of one hundred ($100.) dollars in United States gold coin as a bonus, at its option quit and surrender the same, and this lease shall thereupon terminate, - and the parties hereto shall be relieved from all further obligations hereunder, provided however, and as a condition precedent to the exercise of such option, that said lessee shall have removed to or erected upon said premises improvements of the reasonable value of three •hundred and sixty ($360) dollars, to revert to said lessor.”

The plaintiff’s complaint in the first cause of action alleged that the defendant “has failed and refused and still refuses to make any improvements on said premises or to move to or erect thereon any improvement or improvements whatsoever as agreed in said lease, or to improve the premises in any manner whatsoever,” The defendant’s demurrer, which was

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general insofar as it concerned the sufficiency of the facts stated to constitute a cause of action, was overruled. The demurrer upon this ground was directed apparently to the point that the plaintiff did not have a cause of action for damages because of the defendant’s failure to make any improvements upon the leased premises, for the reason, as is contended, that the covenant of the lease covering the placing and erection of such improvements did not require the defendant to provide them unless he saw fit to do so. Standing alone and literally construed the covenant in controversy would perhaps mean no more than is contended for by the defendant; but a lease, like every other contract, must be considered and construed in its entirety so as to give effect if possible to the mutual and manifest intention of the parties (Civ. Code, sec. 1636); and in so doing its several clauses and covenants must, if not absolutely repugnant, be considered conjunctively (Civ. Code, sec. 1642).