Metzler v. Thye

MELVIN, J.

Defendant became the lessee of certain premises in the city of Los Angeles. During the term of his lease plaintiff bought the property and succeeded to all of the rights of the lessor. After the term of the lease and surrender of the premises by defendant this suit was brought for damages alleged to be due for injuries to the property beyond reasonable wear and tear and for the failure of defendant to install a certain sidewalk elevator, as provided by the terms of the written lease. The superior- court gave judgment in favor of defendant and plaintiff appeals therefrom. -

There is no attack upon the finding that the lessee had not injured the premises beyond reasonable wear and tear, the only point of controversy here being with reference to the interpretation given by the trial court to the covenant in the lease respecting the sidewalk elevator. The appeal is upon the judgment-roll alone and as the court found that there xyas no agreement respecting the installation- of the. elevator except that expressed in the lease, we must construe that in

[97]

strument in the light of this finding. In his answer defendant admitted that no elevator had been put in position but pleaded as an excuse for his failure to comply with the requirement of the lease in that regard that, although he was ready at all times during the term of his tenancy to fulfill his obligation, plaintiff had prevented him from so doing by neglecting to prepare the premises for the reception of the elevator. The requirement of the contract of lease was that defendant within six months from the first of November, 1905, should “install a sidewalk elevator from the basement to the sidewalk in front of said premises.” The court found that neither plaintiff nor his predecessor in interest prepared or offered to prepare the premises for the reception of an elevator, and that “before said elevator .‘could be installed it would have been necessary to make certain changes in the building on said premises, to remove a part of the foundation wall under said building, to excavate under the sidewalk and build a wall around such excavation and an arch over the portion of said foundation wall to be removed as aforesaid, in order to prepare a place for the installation of said elevator; and that it would have been further necessary to place trap doors in said sidewalk.” It will thus be seen that the whole controversy turns upon the meaning of the word “in-stall.” Appellant insists that since all things necessary to carry a contract into effect are implied therefrom (Civ. Code, sec. 1656) and since the contract is to be “interpreted most strongly against the promisor,” in cases of uncertainty (Civ. Code, sec. 1654), therefore this court, as matter of construction should give to the word “install” a force including all things necessary to the carrying out of defendant’s promise. The words “install” and “installation” when applied to machinery have a technical meaning and should be interpreted accordingly. (Civ. Code, sec. 1645.) Webster’s New Standard Dictionary gives these definitions: “Install—to set up or fix in position for use or service; as to install a heating or lighting system.” “Installation—the whole of a system of machines, apparatus and accessories set up and arranged for working, as in electric lighting, transmission of power, etc.” Other lexicons define these words quite similarly. When, therefore, defendant agreed to install an elevator “from the basement to the sidewalk in front of said premises” he meant