Bartels v. Brain

44 P. 715, 13 Utah 162, 44 P.R. 715, 1896 Utah LEXIS 21

• Court: Utah Supreme Court
• Decided: March 26, 1896
• Docket: No. 607
• Status: Published

Opinions

Zane, C. J.:

It appears from the evidence in the record that Charles Popper, the grantor of the plaintiff, executed a written lease of two and a half acres of land situated in the suburbs of Salt Lake City, for the term of five years from July 1, 1886, to the late Edward Brain, of whose estate the defendant is administratrix; that Brain, during his lifetime, and his administratrix afterwards, to the end of the term, paid the rent reserved, and occupied the land as a brickyard; that the lease contained the following covenant: “At the expiration of the term in this lease mentioned, he [the lessee] will yield and deliver up the said demised premises to the said party of the first part in as good condition as when the same were entered upon by the said party of the second part,- — reasonable use and wear thereof, and damages by the elements excepted.” This action was brought to recover damages in consequence of an alleged breach of the above covenant, in surrendering the land, at the end of the term, with a large excavation, made for brick, in its surface. It appears from the lease that the land extended to Brain’s brickyard, and, from the testimony, that the leased premises were situated on a hillside covered with sage brush, without water to irrigate it, and that for any purpose except brickmaking it had no rental value; that it adjoined the lessee’s brickyard, which he was using, and which had been so dug out at the time of the leasing that it was, in places, 20 feet below the surface of the leased land, up to which the excavation extended; that both parties to the lease knew these facts when it was made; that, after the lease was executed, Popper saw the lessee excavating the land, and making brick of it, without objection; that, during the negotiations before the lease was executed, Popper and Brain agreed verbally that the land embraced in the lease should be used by the lessee for brickmaking purposes, and that clay for brick might be taken therefrom. Evidence of the foregoing agreement, and of the other facts, not in the lease, to show the intention of the parties in employing the terms “reasonable use,” was admitted by the court over the objection of the plaintiff, and the ruling excepted to, and assigned as error.

Tliis evidence was admitted to explain the sense in wbicb the terms “reasonable use” were employed in the covenant sued on. The use that was to be made of the land was not specified in the lease, tbougb real estate may be occupied for many purposes. For life, and its various pursuits and occupations, its necessities and conveniences, require it to be used in many ways. It may be used for residence, commercial, or manufacturing purposes, including the manufacturing of brick, or for other purposes. And, when a particular use is not mentioned in the lease, the land may be used for any lawful purpose indicated by its situation, condition, and adaptability. The reasonableness of the use must be determined by the understanding of the parties, its suitableness, adaptability, situation, and surroundings. From the fact that rent wa,s reserved, it is reasonable to assume that the parties expected the use of the land would be of some value to the lessee; that be would use it so as to get something in return for rent paid. But the evidence in the record shows that the land in question bad no rental value for other than brick purposes. Therefore such a use was the only reasonable one to wbicb the lessee could put it. The evidence objected to was not admitted to add to, take from, or to change in any respect the language of the writing. There was no intention of admitting any other language of the contract than that contained in the written instrument. The object of the evidence was to place the facts in view of the parties when they made the lease before the court, when construing it. In order to determine whether a man has acted reasonably, we should know the facts and circumstances in view of wbicb be acted. And, to determine the use that the parties deemed reasonable, the court should know the facts from which they reasoned. In view of the fact that the particular use to which the land was to be put by the lessee was not mentioned in the lease, it was proper to admit evidence tending to show that the parties intended the land should be used for brickmaking purposes; and it was not error to show the understanding of the parties by their declarations in the form of a verbal agreement, and that the lessor, after the lease was executed, saw tthe lessee excavating the land, and making brick of it, without objection. This last fact indicated an acquiescence in the construction the court had given it. Ganson v. Madigan, 15 Wis. 144, was upon a written contract. The court said, in its opinion: “Thus, if the language of the instrument is applicable to several persons; to several parcels of land; to several species of goods; to several monuments, boundaries or lines; to several writings; or the terms be vague and general, or have divers meanings, — in all these and the like cases, parol evidence is admissible of any extrinsic circumstances tending to show what person or persons, or what things, were intended by the party, or to ascertain his meaning in any other respect; and this without any infringement of the general rule, which only excludes parol evidence of other language declaring the meaning of the parties than that which is contained in the instrument itself. If evidence of surrounding facts and circumstances is admitted to explain the sense in which the words were used, certainly proof of the declarations of the parties, made at the time of their understanding of them, ought not to be excluded. In re Curtis-Castle Arbitration, 64 Conn. 501, 30 Atl. 769; Stoops v. Smith, 100 Mass. 63; Emery v. Webster, 42 Me. 204; Waterman v. Johnson, 13 Pick. 261; Sargent v. Adams, 3 Gray 72.

The following paragraph of the charge of the court to the jury is also assigned as error, viz.: “If the jury believe from the evidence that Charles Popper and Edward Brain agreed that the premises in question should be used, under the lease, for brick purposes, and that Edward Brain and his representatives used the premises in a reasonable manner for such purposes, then the plaintiff is not entitled to recover. In determining what the agreement of the parties was, as to the use of the premises, you may consider, not only testimony bearing directly on the question, if any, but also the surrounding circumstances, including the use the premises might be reasonably put to, the rent agreed to be paid for the premises, and any acts of the parties showing, or tending to show, what was understood by them to be the use that should be made of the premises.” In view of the fact that the lease authorized the lessee to make any reasonable use of the premises, the court properly charged the jurors that, if they found from the evidence that the parties to the lease agreed that they might be used for brick purposes, they should find for the defendant. The court informed the jury that, if the fact of the agreement existed, then, as a matter of law, the plaintiff could not recover, in view of the evidence before them. The other facts mentioned in the paragraph quoted were proven beyond any question, and the court properly informed the jurors that they might consider them for the purposes of determining the agreement, and what was understood by the parties to the lease as to the use the premises should be put to.

The decision of the points above considered is decisive of this appeal. It is therefore unnecessary to consider the case further. The judgment of the court below is affirmed.

Babtch, J., concurs in the judgment.