Edwards Hotel Co. v. Chambers , 141 Miss. 487 ( 1926 )

I dissent from the majority opinion for the reason that the parties signed an elaborate contract covering sixteen pages of the record in this case and containing twenty-seven paragraphs or clauses, making a full and complete agreement between the parties, which, under well recognized rules, is the sole exponent of the agreement of the parties. There can be no question in my opinion about the sufficiency of the writing to constitute a legal contract and nothing is left to implication therein. The twenty-first paragraph of the contract, in my view, is practically eliminated by the construction of the majority of the court. This paragraph, in full reads as follows:

"The tenant agrees that the premises are taken after examination and without representation of any kind on the part of the landlord or its agent. No representative or agent of the landlord is or shall be authorized or permitted to make any representation with reference thereto or to vary or modify this agreement in any way, and this lease contains all the agreements and conditions made between the parties hereto, and any addition to or alteration of or changes in this lease, or other agreements hereafter made or conditions created, to be binding, must be made in writing and signed by both parties, and the provisions of this paragraph or of any other part of this lease cannot be waived, except by a writing duly signed by the landlord."

It is plainly agreed in this paragraph that the lessee had inspected the premises and made the contract after examination without any representation on the part of the landlord or his agent. It is further agreed that no agent is permitted to make any representation or to vary or modify the agreement in any way, and it is plainly agreed that the lease contains all the agreements and conditions made between the parties thereto, and that none of the conditions and agreements can be waived, except by the landlord.

It is plain to my mind that this contract means that the lessee had examined the plans and specifications for the building, and it is nowhere alleged or proven in the record that the room was not constructed in strict accordance with the plans and specifications of the building. It would be impossible to construct a twelve-story building without having plans and specifications; and where the building is not erected, but is either to be built, or is in process of building, a stipulation that the lessee has examined the building and taken it without representation on the part of the lessor means that he has examined the plans and specifications and takes the leased part of the building as it will be when built in accordance with these plans and specifications.

The facts in the record show that the lessee applied to the lessor for space in said building and that the lessor distinctly told him that it would not make the changes unless agreed to by the architect; that it would not change the plans of the building without such consent. The lessee thereupon went to New Orleans, La., to consult the architect, and laid before the draftsman of the plans and specifications the changes which he desired, and took the blueprint made by such draftsman, and acted upon it. In order to accommodate the lessee and to conform to his wishes, certain changes were made in the basement space, and a stairway cut from the basement to the first floor, and a mezzanine floor and stairway thereto constructed. The lessor procured another tenant to surrender a portion of its lease to accommodate the lessee in the present case. There were also alterations made in the storeroom, causing, necessarily, some considerable expense, and which were made at the instance and request of the lessee, and according to the plans furnished him by the draftsman of the architect.

To say that under these facts the minds of the parties did not meet and that the lessor must suffer the loss occasioned by the failure of the lessee to comply with his contract, it seems to me is to sanction an injustice. The facts that the lessee did not in fact examine the plans and specifications and did not understand exactly how the building would be constructed is entirely his own fault, and is not attributable to the lessor in any degree whatever. The parties have a constitutional right to make their own contracts and to bind themselves by written contracts such as the one we have before us. If a man signs a contract without reading it and without informing himself with reference thereto, without any deception or representation by the opposite party, he must take the consequences of his failure to do what the law plainly requires him to do. The appellee, the lessee, in his testimony testifies that there was no representation made to him by the lessor with reference to the condition of the basement, nor what it would contain. Every person must know that the construction of a building of this type under modern conditions calls for piping, and there is no showing the the lessee was deceived at all, nor, in my opinion, does the record show the basement space was not suited for storage purposes. Certainly the record would warrant a finding by the chancellor that it was suited for storage purposes notwithstanding the pipes laid therein.