finding that partial 7 forfeiture “leav[es] the lessee bound to part of the heirs but denied all practical benefits under the lease,” creating a “sort of tenancy which . . . it would be unreasonable to hold that the lessor and lessee intended or contemplated”
How later courts described this case
- finding that partial 7 forfeiture “leav[es] the lessee bound to part of the heirs but denied all practical benefits under the lease,” creating a “sort of tenancy which . . . it would be unreasonable to hold that the lessor and lessee intended or contemplated”
- finding that doing so places the lessee “in [an] inequitable position” because the lessee “is still liable as a lessee to some of the tenants in common, although he cannot enjoy any of the benefit of his lease without becoming a trespasser”
- “a lessor waives his right” to enforce a condition in a lease by accepting rent with knowledge of breach “unless there are circumstances to negat[e]” the affirmation of a lease which might otherwise arise from the acceptance of rent
Written by the judges who cited it.
The opinion
Given, Judge,
dissenting:
It is my position that there is no ambiguity in the simple written rental contract involved and, that though the word “sold” be assumed to be ambiguous, the evidence relating to any ambiguity supports the finding and holding of the trial court as to what was intended by the parties. The rental provided in the contract for the property leased was “twenty dollars ($20.00) per month payable in advance, and the said party of the second part further agrees to pay one cent (1^) per gallon on all gasoline sold at the aforesaid filling station”. In the course of the operation of the filling station the lessee, also the owner of a taxi business, operated from nearby premises, purchased gasoline from a distributing company, for resale, and, on a separate account, purchased gasoline from the same distributing company for use in the taxi business. Gasoline purchased on both accounts was delivered into the tank at the filling station. It is the one cent per gallon for the gasoline used by the lessee in his taxi business and delivered into the filling station tank which constitutes the $2,900.54 claimed by plaintiffs *766 to be owing, plus $500.00 for “base rent” for some unspecified period or periods of time “from 1945 to 1951”, which constitute the sum for which judgment is directed to be entered against defendants.
The only basis for any recovery by plaintiffs of any rental relating to the one cent gallonage charge rests wholly on the assumption that there exists an ambiguity in the simple, everyday word “sold” used in the agreement. It is not contended, and can not be, that any other word or phrase in the rental agreement conflicts with the usual and plain meaning of the word “sold”. Neither is there any suggestion, in the record, that the word was not used in its plain, ordinary or usual sense. The only basis for the majority view that ambiguity exists in the contract is that ambiguity “is evident from the diametrically opposite contentions of the plaintiffs and the defendants as to its meaning and effect”. If “contentions” of parties litigant determine whether a contract is ambiguous, then every contract contested by litigation is necessarily ambiguous. “5. It is only where the language of a contract is ambiguous and uncertain and susceptible of more than one construction that a court may under the well established rules of construction interfere to reach a proper construction and make certain that which in itself is uncertain.” Griffin v. Coal Co., 59 W. Va. 480 , 53 S. E. 24 , 2 L. R. A., N. S., 1115. To sustain the conclusion reached by the majority in the instant case, it must be held that the word “sold” includes within its meaning the meaning of the word “used”, and which would necessarily mean that the majority conclusion is that the lessee “sold” gasoline to himself.
Neither is there any evidence in the record establishing any contemporaneous or subsequent construction of the contract by the parties. The most that can be said in favor of any such construction is that the testimony of the plaintiff Nell Fredeking is to the effect that the one cent gallonage rental was paid on all gasoline billed to the station for several months subsequent to the execution of the rental contract. Assuming that such testimony is correct, though it is strongly denied by defendants, it *767 is clear, as will appear from evidence hereinafter quoted, that defendants never interpreted the word “sold” as meaning that all gasoline delivered to the station was to be subject to the one cent gallonage charge. Even the plaintiff Nell Fredeking, the only witness testifying on behalf of plaintiffs concerning such facts, admits that she had no knowledge concerning the matter until after she examined certain records in the State Tax Commissioner’s office years later, probably about the time of the institution of the instant cause. Moreover, it can not be denied that defendants, after May, 1946, treated the contract as requiring payment of the gallonage rental only as to the gasoline actually sold, not as to that used by lessee in his own business. If the payment of the gallonage charged for several months, through some error, be an indication of plaintiffs’ interpretation of the contract, would not the refusal of defendants to pay the gallonage charged for several years, coupled with the fact of acceptance of all other rentals by lessors, be most strongly indicative of the interpretation of the contract by all of the interested parties? There can be no question that Nell Fredeking is charged with knowledge of such position of defendants, since payments of all rentals were, in accordance with prior arrangements, made through the partnership of which she was a member.
Assuming, however, that the word “sold” is of itself ambiguous, or that the question of ambiguity of the rental agreement is revealed by the evidence, or by the actions of the parties, the evidence, I think, conclusively supports the finding and holding of the trial court. Only two witnesses testified on behalf of plaintiffs. One witness testified only as to what was, in his opinion, a reasonable monthly rental for the filling station premises, which was clearly immaterial, in view of the written contract, admitted by all to be valid. The other witness testifying on behalf of plaintiffs, Nell Fredeking, though a party to the rental contract, gave not a word of testimony as to the supposed or intended meaning of the word “sold”, as used in the contract.
On the other hand, defendants’ evidence on. the point *768 appears clear and cogent. As pointed out in the majority opinion, prior to the execution of the rental agreement the gasoline used by Grimmett in his taxi business was delivered to a tank different from the one located on the premises covered by the rental agreement. W. T. Frede-king, who is not a party to this suit and not interested in the result thereof, but who was familiar with the transaction and was one of the partners selling and delivering gasoline to Grimmett, testified to the effect that the gasoline used in the taxi business was, over a long period of time, delivered to a tank located on a lot owned by Grim-mett, from which lot the taxi business was operated, a different lot from the one covered by the rental agreement, and that an agreement was made “to handle the gas from the station. [Meaning the filling station leased.] In filling up the tank at the old site we had to block the sidewalk and had numerous complaints about it, and we agreed to any gas he used for the taxi company he was not to pay any rent on”. After the death of J. G. Frede-king, the distributing company changed its name, Nell Fredeking being then made a partner therein. Concerning the manner of the payment of the rent, the witness W. T. Fredeking, also a partner in the new company, testified: “Q. Was the business handled the same way after the new Company was formed as it was before? A. Yes, sir, the same. Q. I will ask you to state whether they delivered the gasoline to the Taxi Company free of rent as they had before? A. Yes, the same as in the past.” It is significant, I think, that the plaintiff Nell Fredeking was a member of the partnership which entered into such an agreement. She does not deny the statement, unless her testimony above referred to concerning the nonpayment of rent be considered such a denial. The witness Falconer, who was plant manager for the distributing company, the company through which rentals were paid and the company delivering gas to the premises leased, and later an employee of Grimmett from April, 1946, to March, 1951, corroborated the witness W. T. Fredeking, and testified positively that “There was no rental charged on any gasoline delivered to 300 Taxi Company, no, sir”. This witness further testified that “Gasoline delivered *769 to the service station was billed to O. R. Grimmett DBA O. R. Grimmett Service Station, the gasoline delivered to the 300 Taxi Company was billed to the 300 Taxi Company”, and that he was “instructed by Mr. Fredeking to bill the gasoline in this way”. Another witness, Hodge, who was an employee of Grimmett from 1944 to 1948 or 1949, was asked: “And was there a rental added to that portion of the gasoline used by the 300 Taxi Company?” His answer was, “No.” Grimmett, the lessee, was asked “to state if you know what the word ‘sold’ had reference to in this lease”. His answer was, “Gasoline sold at retail”. This witness, testifying as to the reason why the arrangement was made to deliver the gasoline used by the taxi company to the filling station, instead of to the old location, where admittedly no rental was to be charged against the lessee, testified: “It was a very difficult thing to unload gasoline from a tank truck. The lot and street was not level, the truck rested across the sidewalk and blocked traffic and the gas would not drain, people complained generally about it — the blocking of traffic.” Does not such testimony, actually not disputed in the record, make it crystal clear that the arrangement whereby the gasoline used in the taxi business was to be delivered to the filling station tank, instead of the tank at the old location, was for the special benefit of the distributing company, of which the plaintiff Nell Fredeking, or her husband, J. G. Fredeking, were partners? Or shall we assume that the lessee agreed to the change merely for the privilege of paying the additional one cent gallonage rental?
The decision of the majority is based on the theory that the use of the word “sold” in the rental agreement constitutes an ambiguity. Thus far I have attempted to demonstrate the lack of support of that theory in the record. My own belief is that the question which should control the decision in this case is whether the finding of the trial court is supported by the evidence. Only a simple rental contract, of about two pages, is involved. The provisions therein are not unusual. Only one question of fact is actually involved, whether or not any rental *770 charge which accrued under the agreement remains unpaid. This, of course, includes the question as to the one cent gallonage rental. On the question of fact involved, the plaintiffs produced only one witness, Nell Fredeking, one of the plaintiffs. Her evidence in chief consists of about thirteen printed pages of testimony. Except as to her testimony relating to her examination of certain tax records, which her counsel admit is “not the best evidence of facts which they purport to show”, her testimony relating to the payment or nonpayment of rent consisted of less than two pages. She testifies not a word as to the question relating to the interpretation of the word “sold”.
As noted from the testimony quoted above, witnesses for defendants testified to the effect that the word “sold” was used in the rental agreement for the specific purpose of limiting the gallonage charge to the “Gasoline sold at retail” because of the difficulty had by the distributing company in making deliveries to the old tank, and that the new arrangement was made at the instance of the distributing company, in which Nell Fredeking was a partner. It was also shown, by the evidence quoted above, that during practically the entire period of time of the operation of the filling station, the quantities of gasoline sold to the station and the quantities of gasoline delivered for use in the taxi business were billed separately, and it was also shown by a former plant manager of the distributing company, which company collected the rentals by proper arrangement, and in which company Nell Fredeking was a partner, that “There was no rental charged on any gasoline delivered to 300 Taxi Company, no, sir”. The plaintiff Nell Fredeking testified: “Q. He collected the rentals from all this property and from the Da & Nite Service Station up until he made his final settlement? Is that correct? A. That’s right. Q. You made no objection to Mr. Grimmett or Mr. Swiger concerning them paying to Mr. Fredeking this money, did you? A. No, sir, I had been told by the Commissioner of Accounts that it was his duty to collect the rents.” The witness J. Lynn Swiger testified to the effect that there *771 was never any question raised by Nell Fredeking until this suit was instituted. That Nell Fredeking, in her own right and as the duly appointed guardian of the two infants, received the rentals paid, can not be doubted. As to the rental payments, W. T. Fredeking testified, “they were paid there [at the offices of the distributing company] and then brought to the bank, I had charge of them. At the end of the year I made my settlement from the bank account”. Nell Fredeking admits that she received checks from W. T. Fredeking, as personal representative of the estate of J. G. Fredeking. In these circumstances, it appears to me that the evidence unquestionably supports the finding of the trial court.
Neither am I convinced that the case before us is one for equity jurisdiction. The only claimed basis for equity jurisdiction is that an accounting was necessary. As above pointed out, the only question involved herein was whether plaintiffs were entitled to the one cent gallonage rental for gasoline used by the taxi company, the answer depending upon an interpretation of the rental contract. The rate of the gallonage rental was never in question, and information as to the number of gallons involved was available to plaintiffs at the offices of the distributing company, of which Nell Fredeking, one of plaintiffs, was a partner. The records of the “Esso Standard Oil Company”, which Nell Fredeking referred to in her testimony, were as available to plaintiffs as to defendants. The records of the filling station and of the taxi company were available to plaintiffs at all times, and Nell Fredeking was informed that she could examine the “invoices at any time”, though she never sought to examine them. In these circumstances, I can see nothing requiring any accounting in equity. This is simply a proceeding to recover unpaid rent. No discovery was needed. The account was not intricate or complicated. Only where an account is intricate and complicated can equity take jurisdiction for settlement of an account. See Rothwell v. Brice, 94 W. Va. 466 , 119 S. E. 293 , and cases there cited. “Matters of account, originally cognizable only at law, are now within the jurisdiction of equity, but only when some *772 special ground of equity jurisdiction exists, such as fiduciary relations, mutual or complicated accounts, fraud, or the need of discovery; and if a penal statute is involved, no accounting can be had unless the penalty is waived.” 1 C. J. S., Accounting, Section 14. I am, therefore, of the opinion that defendants effectively have been denied their right to have the matter decided by a jury. Upon this ground, if for no other reason, the action of the trial court in dismissing the bill of complaint should be sustained, or the case remanded for the purpose of permitting' plaintiffs to transfer it to the law side of the Circuit Court of Summers County. See Kertesz v. Falgiano, 140 W. Va. 469 , 84 S. E. 2d 744 .
Being of the views indicated, I respectfully dissent.