Deutsch v. Frey , 36 Ohio App. 226 ( 1930 )

I cannot concur in the judgment in this case.

The lease in question was for a term of five years with the option of purchase for the sum of $25,500, less the annual payments of $500, provided for in the lease. At the time the lease was executed the street improvement was in progress, and well on the way toward completion. The improvement was completed and the assessing ordinance was passed in October, 1926. While it is true that notice of the amount of the assessment under the ordinance was sent to the owner, it was not at that time a lien on the property. This notice gives the owner the option of paying in cash. If not paid in cash, under the law and the ordinance, the assessment is made payable in ten annual installments, and thereupon becomes a lien upon the real estate.

The first installment must, of necessity, appear on the duplicate for the first time in December, 1926, or thereafter.

The covenant in the lease is that the lessee agrees "to pay the rent above reserved, as above specified; to pay all taxes, rates, charges and assessments of every kind that may at any time during this demise, be levied, rated, charged and assessed on said premises, or any part thereof for any purpose whatsoever beginning with taxes, rates, charges, and assessments, levied, rated, charged, and assessed in December, 1926, and thereafter."

There is some ambiguity in this covenant, in that in the first part the lessee agrees to pay "all * * * assessments of every kind that may at any time during this demise, be levied, rated, charged and assessed," while the latter part of the covenant provides, or pay "any part thereof for any purpose whatsoever beginning with taxes, rates, charges, and assessments, levied, rated, charged, and assessed in December, 1926, and thereafter."

This ambiguity was subject to explanation by oral evidence. There was oral evidence offered tending to show the intention of the parties as to the payment of these assessments, and, while this evidence was tendered on the proposition of a reformation of the contract and lease, as against the general objection it was admissible. It being admissible for any purpose, it was error for the court to exclude the evidence under the general objection.

However, taking the facts as they appear from the record, that the improvement was well on its way to completion at the time the lease was made, it being a long-term lease with an option of purchase, and the lessors undertaking to protect themselves from the payment of taxes and assessments, and that the first possible collection of assessments could occur only in December, 1926, or thereafter, which was the time mentioned in the latter part of the covenant, I am of opinion that the reasonable interpretation of the covenant is that the lessee obligated herself and her assigns to pay the assessments in question.