Opinion
No. 27011.
March 19, 1928. Suggestion of Error Overruled April 16, 1928.
1. CONTRACTS. Evidence. Landlord and tenant. In absence of stipulation, contract for leasing rooms in building does not confer on lessee right to display signs on front of buildings; generally, contract is exponent of its own terms, and all previous understandings and agreements are merged therein when contract is written.
In the absence of a stipulation, in a contract for leasing rooms in a building, for the right to display signs advertising the lessee's business, the contract does not confer such right. As a general rule, a contract is an exponent of its own terms, and all previous understandings and agreements are merged therein when the contract is reduced to writing.
2. CUSTOMS AND USAGES. Landlord and tenant. In absence of proof of custom as right to display sign on part of building not covered by lease, there is none by implication from lease; parties relying on custom authorizing lessee to display signs on part of building not covered by lease must prove it.
In the absence of proof of custom in the locality as a right to display a sign, as an incident of a lease, on a part of a building not covered by a lease, there is none by implication from said lease. Such custom must be proved by the party relying on it.
3. LANDLORD AND TENANT. Agreement to renew lease held to give lessee option for new lease for same time and under same terms.
Where a contract for a lease of rooms in a building provided, "Be it further agreed that at the expiration of said lease that the party of the first part [lessor] agrees to release to the party of the second part, at the same rate per month, the same part of the building heretofore described," such lease gives the lessee the option of a new lease for the same period of time and the same terms and conditions as in the original lease.
APPEAL from chancery court of Harrison county; HON. V.A. GRIFFITH, Chancellor.
J.D. Arrington, for appellant.
The original lessor, who then owned the Old Harrison County Bank Building, had the two rooms that were leased to the appellant specially constructed for him in the rear and upstairs of the said building, to use as a photograph studio. In conjunction with a photograph studio, the appellant maintained a printing office. He had four signs that were removed, two of which advertised his photographic business, and two his printing business. One of the signs, the main sign advertising his business as photographer, was a wooden sign, about five feet long and one foot wide; it was suspended and displayed by the lessor himself, before appellant had removed into his then new studio. The second sign, was a metal sign, advertising appellant's printing business. The other two signs were painted, and one advertised his printing, and the other, the appellant's photographic business. The last three signs were erected and painted several years after appellant's occupancy of the premises, but with the assistance and express permission of the lessor. Appellee purchased from appellant's lessor, O.D. Gunn, the Old Harrison County Bank Building part of which appellant occupied. Immediately after her purchase appellee gave notice to the appellant that she would want possession of the leased premises in October, 1925, when she erroneously supposed the lease would expire. She gave the appellant three notices to vacate the premises. The appellee, in turn, gave notice of his election to renew the lease. There had never been any complaint from other tenants of the building, or by the landlord, of the manner in which the appellant was advertising his business.
Appellant's first assignment of error, is that the court manifestly erred in not finding that the large suspended sign, or the main sign of the appellant, was erected before the appellant went into possession, and before the lease was executed. The second assignment of error, is that the court manifestly erred in not finding that the appellant's right to display signs sufficiently advertising his business passed as an incident to the lease contract. The importance of this assignment of error, is obvious, in view of the court's opinion to the effect that the appellant was without the law in displaying signs, that the right to do so was a mere personal license, revocable at any time, not binding on him (Mr. Gunn, the original landlord) and could not be binding on his successor in title "who did revoke by taking down the signs." What is essential to the enjoyment and necessary for the purpose of the lease, passes as an incident. 36 C.J. 93, sec. 729. This rule applies to a lease of a part of a building. 36 C.J. 30, sec. 632, Landlord and Tenant; Baldwin v. Morgan, 43 Hun. (N.Y.) 3551; Edmison v. Lowry (S.D.), 17 L.R.A. 275; 2 Thompson's Real Property, p. 326, sec. 1244; also p. 179, sec. 1107, Ibid; Bldg. Co. v. Peters Trust Co., 106 Neb. 294, 183 N.W. 302; Hawley and McGregor's Real Property (4 Ed.), pp. 150, 192, quoting: "appurtenances mean a right which passes as an incident of the grant of something else as the principal subject of the grant. In deeds and leases it is restricted to rights and privileges incident to real property, as, for instance, a right-of-way. The use of those words in a lease is unnecessary verbiage since, as we have already seen, when land or a building or a part of a building is leased everything which belongs to, and every right or privilege necessarily incident to the use and beneficial enjoyment of the thing leased passes by the lease, without being mentioned specifically." There are no prohibitory or restrictive clauses or words in the lease that could or might deprive the appellant of his rights under the law, it inevitably follows that the right to use signs passed as an incident to the lease. That they were, and are necessary, the lessor and the lessee were both convinced, and settled in advance.
A display of a sign or signs is necessary for the beneficial enjoyment of the premises by the appellant, and therefore, the right to such passed as an incident to the lease. It is plain and undisputed that the original lessor, appellee's grantor, considered such a necessity, and that it was appellant's right under the lease to use signs. It is impossible to even suppose that the lessor, Mr. Gunn, in erecting and in helping to erect appellant's signs, was granting the appellant a mere personal license as a personal favor. It is needless to cite authorities to the effect that the intent of the parties and their practical construction of the lease is binding on themselves and their successors. 36 C.J., p. 32, Landlord and Tenant, and note 60; Ross v. Henderson, 8 B.C. 36, C.J., p. 28, Landlord and Tenant, quoting: "Rights or interest may pass to a lessee by implication, but the implication which supplies express words absent from the grant arises either from a reasonable necessity or from a manifest intention of the parties upon consideration of all of the circumstances." 5 R.C.L. Supp. 897; Zolezzi v. Bruce-Brown, 49 L.R.A. 1414, quoting: "If there be any doubt as to whether the lease included the outer surface of the wall, that doubt was settled by the practical construction placed by the parties upon their contract. As between themselves, it is clear that the lease to the tenant included the right to erect signs upon the outer face of the walls inclosing his loft." 35 C.J. 1180-1181, secs. 476-477, Landlord and Tenant; 2 Thompson's Real Property, pp. 119, 120, sec. 1050 and note; Greenblatt v. Zimmerman, 117 N.Y. Supp. 18; Newman v. Supreme Lodge, 110 Miss. 420, 71 So. 739, quoting: "In construing a contract, the surrounding facts and circumstances must be kept in view in order to arrive at the true meaning of the contract." "If the intent of the parties can be ascertained, the courts will effectuate it." Isler v. Isler, 110 Miss. 419, 70 So. 455. "It is permissible in construing a lease to look to the interpretation that the parties thereto have placed thereon, in its performance, for assistance in ascertaining its true meaning. `No extrinsic aid can be more valuable,'" 16 R.C.L. 701, sec. 189; L. T. Slack v. Knox, 213 Ill. 190, 69 L.R.A. 606.
The authorities are unanimous that, in the absence of a restrictive provision to the contrary, a tenant has the exclusive right to the use of the outside portions leased for the display of signs. Snyder v. Kulesh, 163 Iowa, 748; L.R.A. 1915B, 1059, 144 N.W. 306, 16 R.C.L. 698, 699, secs. 187, 188; L. T. Lowell v. Strahan, 145 Mass. 1, 1 A.S.R. 422, 36 C.J. 86, secs. 713, 717.
The law itself insures that right to the lessee, unless he consents to be deprived of it. Just v. Stewart, 23 Man. 517, 12 Dom. L.R. 65. It is therefore respectfully insisted that the learned court below manifestly erred in not finding that the appellant's right to display signs sufficient for the advertisement of his business, passed as an incident to the lease. The third assignment of error is, that the court manifestly erred in not finding that appellant's right to display sign was a covenant running with the land. All covenants affecting the mode of occupation and enjoyment of the premises leased run with the land. 2 Thompson on Real Property, pp. 284, 285, sec. 1212. It makes no difference whether the covenants are express or implied. Ibid., Vol. 2, pp. 326, 327, sec. 1244; 35 C.J. pp. 1187, 8, sec. 488, Landlord and Tenant, also page 1189, ibid. quoting: "As a general rule all implied covenants involved in a lease run with the land." The covenant for quiet enjoyment is implied in every lease, and binds the lessor's grantee or transferee. 2 Thompson on Real Property, p. 325, sec. 1243. "It is a familiar principle in the law of landlord and tenant that a lessor must be held to have tended that the lease should be beneficial to the lessee and in so far as he is concerned that he will do no act to interrupt the free and peaceable enjoyment of the thing granted it." National Hollow Brake Beam Co. v. Bakewell, 224 Mo. 203, 227, 123 S.W. 561. "It can hardly be doubted, I think, at this day, that, by the general assent of the courts in this state, a covenant for quiet enjoyment is implied in every mutual contract for the leasing and demise of land, by whatever form of words the agreement is made." Mack v. Patchin, 42 N.Y. 167, 174, 1 Am. R. 506; Kemmons v. Crawford (Fla.), 109 So. 505. The covenant binds persons deriving their right or title through the lessor. 36 C.J., p. 76, sec. 696, Landlord and Tenant; Barry v. Halmesly (Ariz.), 210 P. 318; Pattey v. Egan, 200 N.Y. 83, 93 N.E. 267. In our own Code special provisions exist for the protection of lessees against the assignees and grantees of the lessor. Corinth Bank Co. v. Wallace, 111 Miss. 62, 71 So. 266. Appellant's fourth assignment is that appellee was estopped to remove appellant's signs. 36 C.J., page 87, sec. 717; 2 Pomeroy's Equity Jurisprudence, page 1320, sec. 664, and note Fourth Edition; Ibid., Vol. 4, pp. 3982-3985, secs. 1707-9; Ibid., Vol. 2, pp. 1295, 1342, secs. 689, 692; Ibid., vol. 2, secs. 614-625; Ibid. Vol. 3, p. 3120, sec. 1295, and sec. 600; Vol. 2, pp. 1126-7, Fourth Edition. To be enforced in equity, covenants need not "run" with the land. 2 Pomeroy's Equity Jurisprudence, secs. 689, 692; Vol. 3, sec. 1295; Vol. 4, secs. 1342, 1693, 1706, Fourth Edition. Even when the lease prohibits the use of signs, the landlord may waive the restriction, in which case he is bound by his waiver and estopped to remove the signs. 36 C.J., p. 87, sec. 717, Landlord and Tenant; Pevy v. Skinner, 116 Mass. 129; Schopp v. Schopp, 162 Mo. App. 558, 142 S.W. 740; Just v. Stewart, 23 Manitoba, L.R. 517, 12 D.L.R. 65.
The fifth assignment of error is, that the court manifestly erred in finding that the appellant's right to display signs was a mere personal license, revocable, and not binding on the appellee. First, their use was a necessity. Second, the said license — assuming it to be such — was executed and coupled with an interest, and therefore irrevocable during the lifetime of the lease; and, third, the right of appellant to display signs was a license in the nature of an easement; and fourth, the revocation of the license, assuming the right to be such, would, in equity be a fraud on the appellant against which equity should relieve appellant. As to the first ground 2 Thompson on Real Property, pp. 179-180, sec. 1107; Secs. 1203, 1244, 1243, C.J., pp. 68-69; Sec. 688, Landlord and Tenant, and ibid., p. 93, sec. 729; 35 C.J., pp. 1187, 1188, 1189; Sec. 488, Landlord and Tenant; 36 C.J., p. 28, sec. 627, and note 18, Landlord and Tenant; 17 C.J., p. 578, sec. 90, Landlord and Tenant. As to second ground, 17 R.C.L., p. 581, sec. 92, Landlord and Tenant; Holt v. City of Montgomery, 212 Ala. 235, 102 So. 49; Frederick v. Mayers, 89 Miss. 127, 43 So. 677; Binder v. Weinberg, 94 Miss. 817, 48 So. 1013.
As to the third ground Goddard on Easements, page 90; Levy v. Louisville Gunning System, 1 L.R.A. (N.S.) 359, and notes.
Appellant's sixth assignment is that the court manifestly erred in not taking judicial notice of the custom and usage respecting the display of advertising signs by photographers. 1 Jones, Commentaries on Evidence, pp. 741-2, note 18; 23 C.J., sec. 1813, pages 62, 63, 64, 65.
Appellant submits that it is common knowledge that photographers use advertising signs, and that the court manifestly erred in not taking judicial notice of that usage in Mississippi. Appellant's seventh assignment of error is that the court manifestly erred in not awarding damages to appellant. The appellee had no right to make alterations that would injure appellant's beneficial enjoyment of the leasehold. 2 Thompson on Real Property, pp. 326-327, sec. 1244; Harden v. Conwell, 205 Ala. 191, 87 So. 673; Smith v. Faxon, 156 Mass. 589, 31 N.E. 687; Stahl v. Satenstein, 233 N.Y. 198, 22 A.L.R. 798, 135 N.E. 242; Oscar v. Sackville (Tex. Civ. App.), 253 S.W. 651.
The development of the law of landlord and tenant reflects most faithfully the advancement of our civilization. Our Code indicates an increasingly jealous regard for the protection of both landlord and tenant. And our equity jurisprudence is never impotent to protect from invasion and substantial injury the enjoyment of a legal or equitable right. "We may admit all these contentions as stating sound propositions of law, but we are not to lose sight of the fact that this is a suit in equity and that the doctrines applied by the courts of equity in cases of this kind call for a consideration of all the facts and circumstances which held to show what is just and right between the parties." Schopp v. Schopp, 162 Mo. App. 558, 142 S.W. 740; Lynch v. Union Institution for Savings, 159 Mass. 306, l.c. 309.
S.C. Mize, for appellee.
(1) The appellant's contention in his assignment of error No. 1, is immaterial in arriving at a correct decision in this case and is disposed of by our second argument. (2) All of the negotiations between Gunn and Dowling preceding the executions of the written lease were consummated in it. The lease became the sole repository of the contract and it furnishes the controlling evidence of the terms and conditions upon which the property was demised. (3) That the alleged agreement between Gunn and Dowling concerning the right to erect signs could only be: (a) a part of the written lease contract expressly; (b) an incident of the lease; (c) a collateral agreement; (4) that the use by the appellant of the columns at the entrance of the common stairway was not appurtenant to the premises demised; (5) the alleged right to display signs by appellant is not a covenant running with the land; (6) the appellee was not estopped to remove appellant's signs; (7) the appellant's contention that the court erred in not taking judicial notice of the custom of photographers to display signs is untenable either as a proposition of law or fact; (8) that the removal of the signs was within the appellee's legal rights and is therefore damnum absque injuria.
All of the negotiations between Gunn and Bowling preceding the execution of the written lease were consummated in it. The lease became the sole repository of the contract and it furnishes the controlling evidence of the terms and conditions upon which the property was demised. 16 R.C.L., "Landlord and Tenant," p. 189, citing Sailinger v. North American Woolen Mills, 70 W. Va. 151, 73 S.E. 312, 39 L.R.A. (N.S.), 350. In the Sailinger case, supra, the West Virginia supreme court of appeals discusses the above questions fully and cites many authorities upholding our contention. The facts in the West Virginia case are similar to the case at bar and the general propositions of law defining the rights of a tenant of a portion of a business building to display signs advertising his business, on the outside walls of other parts of the building than that part occupied by him, are most ably discussed. The alleged agreement between Gunn and Dowling concerning the right to erect signs could only be (a) a part of the written lease contract expressly; (b) an incident of the lease; (c) a collateral agreement. (A) An examination of the lease (R. 33) discloses that the right to maintain signs on the outside walls is not expressly given. (B) The courts are unanimous in holding that the right contended for by the appellant is not an incident to the lease. Thompson on Real Property, sec. 1111; Sailinger v. North American Woolen Mills case, supra; 1 Underhill, Landlord and Tenant, sec. 277, 24 Cyc. 1047; Jones on "Landlord and Tenant," sec. 108, 36 C.J., Landlord and Tenant, sec. 713; 16 R.C.L., Landlord and Tenant, sec. 226, p. 733; Zolezzi v. Bruce-Brown, 49 A.L.R. 1414, cited by counsel for appellant at page 13 of his brief. All the authorities cited by counsel at page 13 of this brief show that the law is settled that the right to display signs under the facts in this case is not an incident to the lease. Lowell v. Strahan, is a strong case in support of our contention and is cited in the West Virginia case above referred to. (C) If it be contended that the right to display signs be a collateral agreement, then as said by the learned chancellor in his opinion (R. 187), "and there is not pretense here there was any consideration paid to the landlord at any time for the privilege of putting out these signs." The contract would be void not being based on a valuable consideration. The use by the appellant of the columns at the entrance of the common stairway was not appurtenant to the premises demised. Tremont Theatre Amusement Company v. Bruno, L.R.A. (N.S.), 1917, c. 387. At no time has he been denied "a reasonable display of signs." In fact, appellant has, at all times enjoyed the use of a liberal amount of space on the common stairway, advising the public of the presence of his place of business in this building. The alleged right to display signs by appellant is not a covenant running with the land. Thompson on "Real Property," secs. 1201, 1205.
Appellee was not estopped to remove appellant's signs. The statement of law from 36 C.J., page 87 (appellant's brief, page 16) is not applicable to the case at bar because the portion of the building on which appellant's signs were affixed was not "under lease from the former owner." His uses of same as a licensee would in no way constitute an estoppel; further, there was no privity between Dowling and the appellee. Sailinger v. North American Woolen Mills, supra.
The appellant's contention that the court erred in not taking judicial notice of the custom of photographers to display signs is untenable either as a proposition of law or fact. As said by the chancellor (R. 186): "As I have said, there is no mention of it in the contract; and the attempt to prove that it is the custom in the city of Biloxi, that tenants have the privilege to advertise by hanging out signs, failed." 15 R.C.L., sec. 51, page 1122. The removal of the signs was within the appellee's legal rights. As said by the chancellor, R. 187; "It is not shown that any improper motive is to be ascribed to her in so doing (removing the signs)." "But, be that as it may, she had the right to do it, and since she had the right, her motive is immaterial." Taking up the cross-appeal by Miss Jessie Smyley, we submit that the court was in error in holding that the appellant was entitled to renew the purported lease.
The clause that would give the appellant a right to renewal is the last clause of the instrument. There must be mutuality and there must be definite terms. In this clause there are no definite terms whatever as to the length of time for which the party of the first part agrees to release to the party of the second part the premises described. The only thing that is certain is the amount of the monthly rental. No time is stipulated when the payments are to be made, and no length of time is stated for which he may have the right to release. The language does not state that they will "renew" this lease, but simply agreed to release to the party of the second part the said property at the rate of twelve dollars and fifty cents per month. If the language had been that they would "renew this lease," then that would carry with it all of the terms that were stipulated in the original document. But such language is not used, and there is nothing in the entire instrument that would warrant the court in finding that it was intended that it might be released for a period of ten years. In Howard v. Tomasich, 81 Miss. 703, the court held that the phrase "with privilege of longer" used in a lease for one year, is too indefinite to give the lessee the right to remain on the premises after the expiration of one year, and that parol testimony was inadmissible to explain the meaning of those words. Carter Building, Inc., v. Taliaferro, 107 So. 377, is not in conflict with the above case and is differentiated from the lease that is now involved. In the Carter case, the language used in the lease is this: "An option of ____ years after the expiration of this lease is hereby extended said party of the second part upon the terms and conditions expressed therein." The bill of complaint in the Carter case alleged that it was the intention of both parties that said blank should be filled in with the figure "5," and the suit was brought to reform the instrument. The chancellor relied largely on the Carter case, and in this we submit he was in error. See, also, the case of Burge v. Purser, 106 So. 770.
We therefore respectfully submit that judgment should here be entered for cross-appellant, Miss Jessie Smyley, cancelling the instrument claimed as a lease.
Argued orally by J.D. Arrington, for appellant, and S.C. Mize, for appellee.
On the 1st day of November, 1916, O.D. Gunn leased to the appellant, J.A. Dowling, certain property in the city of Biloxi, Miss.; namely, two rooms in a building known as the Old Harrison County Bank building. The lease is in the following words:
"This agreement made this 1st day of November, nineteen hundred and sixteen, A.D. 1916, between O.D. Gunn, party of the first part, and J.A. Dowling, party of the second part, witnesseth:
"That party of the first part does hereby lease to the party of the second part, the following described property situated in the city of Biloxi, county of Harrison, state of Mississippi, viz.: Two rooms used as a studio part of the second floor, to be used as a photograph studio in the building known as the Old Harrison County Bank building, 313 1/2 Lameuse street, for the term of ten years. Party of the second part agrees to pay as rent for the premises the sum of twelve dollars and fifty cents, payable on the first of each month.
"Be it further agreed that, at the expiration of said lease, the party of the first part agrees to release to the party of the second part at the same rate, twelve dollars and fifty cents a month, the same part of building heretofore described.
"O.D. GUNN."
The lessee, Dowling, placed on or attached to the front of the building advertising signs which remained until after Gunn had sold the building to Miss Smyley, the appellee. The appellee purchased the property on March 11, 1925, while the said lease was pending, and after purchasing the building proceeded to make improvements on it, among which was the painting of same. She removed the signs which the appellant had on the front of the building with the exception of one containing some photographs. She further gave notice to the appellant to vacate the premises on the expiration of his ten-year lease, which the appellant refused to do. During the negotiations for the purchase of the building between Gunn and the appellee, Gunn produced for inspection copies of all the leases except that of the appellant, but told her that the appellant had a copy thereof. Subsequent to the purchase she was shown the lease of the appellant, which he insisted on renewing, and also continuing the signs on the front of the building. The appellee refused to renew the new lease or replace the signs, but brought suit for the possession of her property; whereupon the bill in the present case was filed by the appellant seeking to compel the appellee to execute a new lease for a ten-year period, in all respects similar to the former, and to compel the appellee to restore the signs which had been taken down or painted out when painting the building, and for damages sustained for the loss of business occasioned by the removal of these signs.
The appellant undertook to prove a custom, in the city of Biloxi, among lessors of property of the kind here involved, which would permit tenants to display signs in front of the building where they had leased rooms in the rear of the building, or other parts thereof. The witnesses, however, stated that it was customary for the lessors of rooms in buildings to permit such signs to be placed in, or on the front part of, the building by the lessee, but it was not a custom of such signs to be placed in, or on the front of, the building without the consent of the lessor. The appellant testified that one of the signs was erected on the building before he moved into it; that he occupied it with such sign; and that same had been displayed continuously for more than nine years.
Mr. Gunn, the former lessor, testified that it was customary for the lessors to permit signs to be erected in the front part of the building for advertising purposes of the tenants occupying any part of the building, including the rear rooms thereof; that he did not remember whether or not a sign was placed there before the appellant entered the building, but that he consented for the signs to be erected.
The appellee testified that the lease shown her by the appellant did not contain the clause for a re-lease of the building, but the appellant testified that the lease shown the appellee was the same one introduced in evidence, and the chancellor found, as a fact, that there was only one lease executed, and the one exhibited the appellee was the one introduced in evidence. The chancellor held that this lease gave the appellant a right to a new lease for a period of ten years at the same rate contained in the one introduced in the record, above set out. He also held that, without the consent of the lessor, the appellant was not entitled to display signs on the front part of the building because his offices or place of business was in the rear; and that the right to have and display the signs, given by the lessor, Gunn, was a mere license, revocable at the pleasure of the lessor. In the absence of any stipulation in the contract for the display of signs, and in the absence of proof of a custom in the locality to have such signs displayed as a right, we think that the lease does not confer on the appellant the right to display signs in the front part of the building, and that the displaying of such signs does not follow as an incident to such lease. As a general rule, a contract is an exponent of its own terms, and all previous understandings and agreements are merged in the contract upon being reduced to writing. Parol proof to supplement the terms of the contract cannot be admitted in the absence of a proved custom existing in the locality where the property leased is situated or where the custom prevails. Such custom must be proved by the party relying upon it, and the court will not take judicial notice of the existence of a custom in a local community. Before the court will take judicial notice of a custom, it must be so general as to attract notice throughout its jurisdiction. In the present case, the appellant sought to prove a custom, but failed so to do. In fact, we think the proof established the nonexistence of such a custom. Consequently, the right given by Gunn to erect signs was a license, as was held by the chancellor, and is revocable, and no damages will be allowed to the appellant for revoking this license.
We think, also, that the chancellor was correct in holding that the last clause of the contract, above set out, conferred the legal right upon the lessee to a new lease for a period of ten years at the same rate as under the original contract. We agree with the chancellor in his rulings and findings in this case, and the judgment is affirmed on both direct and cross-appeal.
Affirmed on direct and cross-appeal.