O'Brien v. Carson

O’Brien v. Carson. 1. Contract: construction. A written lease stipulated that “ the party of the second part, for and in consideration of the rentage and leasing aforesaid, is to pay as rent to the party of the first part a yearly money rent of $660, and, in addition thereto, as part rent, is to board the said party^of the first part and his family, consisting of two adult persons ”: Held, that the lessee was bound to board two persons of the lessor’s family besides himself. Appeal from Fremont District Court. Friday, March 24. This is an action upon a written lease for rent. Defendant answered, setting up a counter-claim for board of servant girl fifty weeks, $200. The lease contains the following paragraph: “And the said second party, for and in consideration of the rentage and leasing aforesaid, is to pay as rent for said premises as follows: For the first year he is to pay first party a yearly money rent of the sum of $660, and in addition thereto, as part rent, is to board said first party and his family, consisting of two adult persons, during said year.” In construing this lease, the court held that defendant was to board three adult persons, two in addition to the first party. After this ruling was made the defendant offered to show extrinsic facts to explain the language in the contract, in proof of the fact that but two persons were intended; but the court held that the language was not ambiguous, and judgment was rendered for plaintiff. The defendant appeals. Stow & Hammond, with J. L. Mitchell, for appellant. Cornish & Draper, for appellee. [MAJORITY — Day, J.] Day, J. It is true, as appellant insists, if the language had been “ the family of A,” A. would have been included as an integral part of the family. But the language here employed, and which we are called upon to construe, is essentially different. The defendant agrees to board the “ first party.” But his agreement does not stop here. He undertakes to do more. In addition to the first party, he agrees to board a certain collection of individuals called a family, and that collection, the contract says, consists of two adult persons. By the express terms of the lease defendant agrees to board the first party, and, add, or in addition thereto, two adult persons. Hence defendant undertook to board three adults. The construction contended for by appellant does violence to the language used. If the defendant agreed to board only two persons, then what follows cmd, in the sentence, includes a part of what precedes, and the word “ and ” does not mean something added 'or in addition to what has gone before. The court, we think, placed the proper construction upon the lease, and did not err in rejecting proof of extrinsic facts, explanatory of it. Aeeibmed.