Barge v. Schiek

58 N.W. 874, 57 Minn. 155, 1894 Minn. LEXIS 248

• Court: Supreme Court of Minnesota
• Decided: May 7, 1894
• Docket: No. 8599
• Status: Published

Opinions

Mitchell, J.

We have examined all of defendant’s assignments of error, bnt it would be as useless to discuss them in detail as it would be tiresome to attempt to follow all the sinuosities of practice which obtained during the progress of this case.

The only assignments of error that have any substance, or at all go to the merits of the case, are those which relate to the construction of the provision in the lease, set up in the complaint, giving defendant “the privilege of another term of five years;” the vital question being whether it applies only to that portion of the leased premises described as No. 49 Washington Avenue South, or to the whole of them, including No. 47.

Our construction is that it has reference to the whole premises, leased as an entirety, and not to a part only. We have arrived at this conclusion on substantially the grounds stated in the memorandum of the majority of the trial judges, and which need not be here repeated. In addition to what is there said, we may add that the argument that the provision for a renewal of the lease did not include No. 47, because at that time plaintiff’s estate or interest therein did not extend beyond the first term of five years, would apply with equal force in favor of the proposition that the original letting of No. 47 was not for five years, because it also appears that plaintiff’s interest did not then cover the last five days of that term.

If the “privilege of another term” was of the entire premises it follows that, by voluntarily surrendering a part of them, the defendant, in the absence of any agreement to the contrary, waived his right to a renewal or extension of the lease. Indeed, the appellant-does not dispute this proposition, his only insistence being that the provision for another term only applies to No. 49. Had plaintiff’s title to No. 47 failed or terminated, so that he could only have renewed or extended the lease as to No. 49, a different question would have been presented; but it stands admitted by the pleadings that, before the five-years term had expired, plaintiff, in order that he might be able to perform his covenants, purchased a long-term lease of No. 47, of which fact defendant had notice before he surrendered it to plaintiff.

We have not stopped to consider whether the stipulation is to be construed as one for a renewal by the execution of a new lease, or one for the continuance of the old lease, which should stand as the lease for the extended term, for the reason that we do not think the question material. In either case the option was of the whole premises, and not of a part.

Judgment affirmed.

Buck, J., absent, sick, took no part.