Regan v. Gerdes

5 Daly 379

• Court: New York Court of Common Pleas
• Decided: May 15, 1874
• Status: Published

Opinion

J. F. Daly, J.

The account given by defendant and his witness, of the agreement between himself and plaintiff, is flatly contradicted by the memorandum of the agreement reduced to writing, signed by defendant. That was the first agreement between the parties spoken of by plaintiff. By it the plaintiff was to pay the defendant half a month’s rent of the store and come under full months’ rent for the premises, on November 1st, to the landlord. In view of the knowledge of all parties, that the defendant had then in his hands the rent of the subtenants for the whole month of October, which he had collected, and was to receive iq. addition thereto the rent of the store for the balance of October, from the plaintiff, it was clearly the intention that defendant was to pay the landlord Wettyen the full rent for that month.

The subsequent alteration of this agreement between the parties, was in two points only, viz., that the plaintiff was to take the lease from October 1st, instead of November 1st, and was to receive from defendant half a month’s rent of the store and a month’s rent of the premises in the building occupied by defendant, instead of paying half a month’s rent of the store to defendant. This was upon the defendant’s suggestion that it would be equal to the arrangement first made—•“ equal to him paying me for half a month and making the lease from first Hovember.” It would not be equal, if plaintiff were to pay the landlord the October rent, as defendant claims he should. But the language evidences unmistakably the intent of the parties to make the last arrangement “equal” to the former, and this intent can only be carried into effect by construing the agreement of the parties, as finally made, to mean : that plaintiff was to become responsible to the landlord, under the new lease, for the whole month of October; and that defendant was to pay plaintiff, not only rent for his own occupation of the premises, but also the rent from the subtenants, which he had already collected for that month. Where the intent of the parties is plain, it will be carried into effect, even if the words used in making the agreement fail to express every part of it. Ho other construction could be given to the language of the parties which would not be grossly inequitable to the plaintiff, and which would not give to defendant by the last arrangement an advantage that he disclaimed when he stated that it was to be “ equal ” to the first one.

The plaintiff had a right to demand, and receive from the defendant, the rents for October, collected from the subtenants,- and the recovery being for that sum, the judgment must be affirmed.

Daly, Ch. J., and Loew, J., concurred.

Judgment affirmed.