Meckes Sons Co. v. Amer. Meat Co. , 96 Ohio App. 17 ( 1954 )

In this action, we have before us for review two separate appeals on questions of law from a judgment of the Court of Common Pleas of Cuyahoga County. For purposes of brevity, the parties will be designated as plaintiff and defendant, respectively, as they appeared in the trial court.

Plaintiff filed its petition for money only in the sum of $16,275.92, plus interest, alleged to be due as rent under a written lease covering three floors of a commercial building located at West 25th street and Carroll avenue in Cleveland.

The defendant filed an answer which, by leave of court, was denominated "Answer and Cross-Petition" wherein it denied that it was indebted to plaintiff in any sum whatsoever and claimed that the rental to plaintiff was by agreement of plaintiff abated during the period for which suit was brought commencing December 8, 1948, through October 28, 1949, and further claimed the right under a contractual provision of the lease to deduct from rentals claimed by plaintiff, the cost of repairs and improvements made by it to the leased premises.

Plaintiff in an amended reply admitted the provisions of the lease and its obligation to make certain repairs as provided therein, but by way of affirmative defense, alleged, in substance (1) that the defendant had prevented plaintiff from making the promised repairs whereby plaintiff was excused from its obligation to do so and (2) that the defendant had demanded the making of the repairs, not for its own enjoyment and convenience, but only for the purpose of coercing plaintiff into granting an extension of defendant's lease, and by reason thereof had not made the demand for the repairs to the premises in good faith.

Trial by jury was waived and after a full hearing and consideration of briefs, the trial court rendered judgment in favor of plaintiff in the sum of $5,541.69 and costs.

From this judgment both parties filed separate appeals, defendant in appeal No. 22906, contending that the trial court erred in giving effect to an intention of the contracting parties not expressed in their written agreement and that the plaintiff was not entitled to recover in any amount whatsoever because the cost of repairs to plaintiff's building equalled and even exceeded the amount of rentals claimed by plaintiff by reason whereof rent was abated to the extent of such cost and, therefore, that judgment should have been rendered for the defendant and, plaintiff in appeal No. 22910, contending that the trial court erred in not awarding judgment for the full amount prayed for in its petition.

The trial court, upon request, made separate findings of fact and conclusions of law, the conclusions of law setting forth,inter alia, that against the amount of $16,275.92, otherwise due plaintiff as rentals, defendant was entitled to a credit of $11,619.02 expended for repairs, leaving a balance of $4,656.90 unpaid and owing from defendant to plaintiff as of October 29, 1949, which, with interest at 6 per cent from that date to date of judgment in the amount of $884.70, made a total sum of $5,541.60, for which the judgment was rendered as above indicated.

The essential findings of fact of the trial court may be briefly summarized as follows:

On October 20, 1949, and for several years prior thereto, plaintiff was lessor and defendant was lessee of three floors of the commercial building hereinbefore described. The leases, which were entered into on or about May 28, 1937, and by the terms of which were to expire on September 7, 1950, were in writing and admitted in evidence. Joint exhibit 4 and exhibit A attached thereto and made a part thereof, made provision for repairs during the term of the lease in the following language:

"The lessor agrees to put the passenger and freight elevators in said building in good working condition and in compliance with the ordinances of the city of Cleveland and the laws of the state of Ohio and to secure certificates permitting their operation from the Commissioner of Buildings of the City of Cleveland and further agrees to make the repairs specified in the paper writing marked "exhibit A" and attached hereto and made a part hereof as if fully rewritten herein and agrees that it will commence said repairs within fifteen (15) days after receipt from the lessee of written demand so to do and will complete said repairs within sixty (60) days after receipt of such written demand, and further agrees that if said repairs are not begun within such fifteen day period lessee may make such repairs, or, if commenced and not finished within the period hereinbefore specified, may complete the same and deduct the cost thereof from the rentals payable hereunder and under the other three leases hereinbefore mentioned, and the lessor further agrees that all such rentals shall be abated for the period that such repairs shall remain uncompleted after the expiration of sixty (60) days after the receipt of said written demand, except that if the commencement or completion of said repairs by the lessor will be delayed by war, fire, strikes, flood, accident or any other cause interfering with the procurement of labor or materials for such repairs, the times limited for such commencement or completion will be extended by the period of such delay and the rent will not be abated during such period."

Exhibit "A," attached to the lease, is a photostatic copy of a scale drawing prepared by one Milo Seymour Holdstein, registered architect No. 1072, itemizing and setting forth the detail of the repairs which the lessor agreed to make upon demand. Repairs were to be made to the second and third floors of the building and consisted among other things of the following:

"The installation of new toilets for men and women with instantaneous hot water heaters and mastic floors; removing rotted plaster under sills and replastering; caulking under all sills and replacing all rotted sills, sash or trim around building; the making of a new office by removing stairs and installing flooring, plaster, trim, etc.; patching all rotted and missing flooring and column bases, removing all radiators and adjacent pipes, and sanding and filling the entire floor; painting all walls, ceiling, columns and trim with three coats of first grade lead and oil paint; removing all wood moulding and replacing with flat wire mould, installing globes in outlets with all fixtures hanging from the ceiling at equal distances; replacing broken glass throughout; installing new maple flooring in a certain area; repairing stairs to the lower floor with risers and new maple treads and a rail and newel; enclosing stairs; putting two elevators in first class working order; closing stairs and installing a floor over the opening."

The rental for the premises was paid by the lessee up to and including December 7, 1948. From December 8, 1948, to October 20, 1949, inclusive, the lessee occupied the premises but did not pay any rent. The period following October 20, 1949, is not involved in the suit.

The lessee first made demand of the lessor by letter to make repairs on August 24, 1946. Thereafter, the lessor did send one man to the premises. The work, however, could not be done because of war restrictions. On October 30, 1948, after war restrictions had been released, the lessee again made written demand upon the lessor. Fifteen days having elapsed thereafter, during which no repairs were made, the lessee, on November 20, 1948, advised the lessor of lessee's intention to make the repairs. On November 22, 1948, the lessor denied any obligation to make repairs and advised the lessee that any steps in that direction would be at lessee's own risk and expense. The lessee then discontinued paying the rent after December 7, 1948, and on December 15, 1948, entered into an agreement with The J. H. Dickson Company to make repairs on a cost plus 20 per cent basis, the performance by Dickson either in material or labor not to be in excess of $1,800 per contract month. Under this contract, the J. H. Dickson Company did work in the area specified in exhibit A, for the next 11 months, for which the defendant paid the total sum of $17,428.50.

It clearly appears from the findings of fact and the judgment that the issues of fact raised as affirmative defenses by plaintiff in its amended reply traversing the allegations of defendant in its answer and cross-petition, were determined by the trial court in favor of the defendant and against the plaintiff, the court stating in part as follows:

"It is contended by the plaintiff that the defendant acted inbad faith by preventing the plaintiff from making repairs, butthese claims of the plaintiff the court does not findsubstantiated by the evidence. The court does find that after receipt of demand for repairs on October 30, 1948 after restrictions had been lifted, that the plaintiff failed to makerepairs and that therefore the defendant had a right to makesuch repairs as were within the limitations provided for in the lease and to deduct the cost thereof from rents due." (Emphasis supplied.)

However, upon the legal question of interpretation of the rights and liabilities of the parties as defined by the provision of the lease relating to repairs the trial court stated in its conclusions of law in part "the court finds that the contract must be so construed as to provide that thedefendant was limited to such repairs as could, withoutrestrictions, be completed within sixty days." (Emphasis supplied.)

The trial court then set forth further in its conclusions of law the following:

"Wherefore, the court reaches the conclusion that defendantshould be allowed to offset against the rent due to the plaintiff that amount expended for repairs which couldhave been completed within the sixty day period which would betwo-thirds of the total amount expended for repairs, requiringninety days to complete without restriction." (Emphasis supplied.)

It was upon this process of reasoning and construction of the contract that the court found that the defendant was entitled to a credit of only $11,619.02 out of a total expenditure of $17,428.50. Thus, it appears that the trial court by construction placed a limitation upon the asserted right of the defendant to deduct the full cost of the repairs described in exhibit "A," attached to and made part of the lease. Inasmuch as the contractual provision of the lease does not, by the language employed, contain such a limitation, two questions of law are presented; first, is the agreement so ambiguous and uncertain in its terms and provisions as to require judicial construction, and, second, did the trial court err in its conclusion that plaintiff was limited by the agreement to an offset of only two-thirds of the total sum expended for repairs?

In the review, we must bear in mind that the action is for money only, and that this appeal is before this court on questions of law only. Consequently, where there are disputed questions of fact, this court can not proceed to weigh the evidence and reach an independent judgment as to the facts as on a trial de novo. That is solely the function of the trial court. As heretofore stated, the trial court found that the affirmative defenses asserted by plaintiff in its amended reply to defendant's cross-petition to the effect that defendant acted in bad faith by preventing plaintiff from making the repairs was not substantiated by the evidence and that the conduct of defendant was not such as to excuse the plaintiff from making the repairs.

The majority of this court, upon a careful consideration of the entire record, is very definitely of the opinion that the evidence amply supports these findings. Therefore, we cannot say that the findings of fact in favor of defendant are contrary to the manifest weight of the evidence. Accordingly, we think no good purpose will be served by an extended analysis or discussion of the evidence. Neither do we think it necessary to attempt to rationalize the motives which may have actuated the conduct of the respective parties in relation to the controversy. Suffice it to say that it is not within our province to say how we would have resolved these questions of fact were we sitting as trial judges.

Proceeding now to a determination of the first question of law posed above, it is our opinion that the language employed by the parties in defining the provisions relating to repairs by the lessee is not so uncertain or ambiguous as to require resort to rules of judicial construction. This being true, it was the function of the trial court to give force and effect to the plain terms and conditions of the contract freely entered into by the parties.

This brings us to a consideration of the provisions of the agreement relating to the repair and improvement of the leased premises. By its terms the lessor agreed:

(1) To put passenger and freight elevators in good working condition in compliance with ordinances and laws of the state.

(2) To make the repairs specified in exhibit A.

(3) To commence repairs within 15 days after receipt of written demand.

(4) To complete repairs within 60 days after demand.

(5) That if repairs are not begun within 15 days, lessee may make such repairs and deduct the cost thereof from the rentals payable under the lease.

(6) If the repairs are commenced by lessor and not finished within the period specified, lessee may likewise complete the same and deduct the cost thereof from the rentals payable.

(7) That all such rentals shall be abated for the period that such repairs shall remain uncompleted after the expiration of 60 days after receipt of such written demand.

It is very important to note from this analysis of the obligations of the lessor that if it undertook to make the repairs and improvements, there was an obligation imposed uponit to do so within a period of 60 days, but, upon failure of lessor to fulfill the terms of its agreement in this respect if lessee undertook to make them, a corresponding obligation wasnot placed upon lessee to do so within 60 days. Thus it is difficult to understand why the trial court in its conclusions of law so held because thereby it injected an issue which neither of the parties had raised in the pleadings, evidence, or briefs. Reading into the agreement such a limitation of lessee's rights is wholly unwarranted by the context. Under the issues made by the pleadings, there could logically be no reason for a compromise finding or judgment.

Under the issues made by the pleadings, and, on this appeal, the plaintiff is entitled either to a recovery of the full amount sued for, or, none at all. Conversely, the defendant is entitled either to a full setoff against the accrued rentals, or none at all. The issues made by the parties are as clear-cut and simple as that. There could be many good reasons why a limitation as to time of completion was not imposed by the agreement upon lessee, one of which is, that by the terms of the contract, the primary obligation was assumed by the lessor to make the repairs or improvements to its own building. It was only in the event of default of this primary obligation by lessor that lessee was given the right to proceed, in which case, so far as its obligations were concerned, it could do so without restriction as to time, so long as it deducted only the cost of repairs from the accrued rentals. It is the law under such circumstances as are here shown, where no specific amount was agreed upon, that the repairs and improvements should be made at a reasonable cost. But no issue was made in the pleadings or by the evidence that the sum of $17,428.50 expended by defendant for cost of repairs was unreasonable. In other words, there was no denial of the cost of the repairs, but denial only of the right to charge the cost thereof against the rentals. These repairs were in the nature of permanent improvements which certainly enhanced the value of the property, although the same was sold by plaintiff before the expiration of the lease. Furthermore, the assertion that repairs and improvements were not made as expeditiously as possible in relation to the abatement of rent during such period of construction and repair becomes inconsequential in view of the fact that the sum total of the unpaid rent is less than the cost of the repairs made. We, therefore, conclude that the time element relating to lessee's right to make repairs under the circumstances here shown is without material significance. Thecost of the repairs was the important and controlling factor, inasmuch as the cost thereof was by agreement to be deductedfrom the rentals. But, regardless of these considerations, the plain terms of the contract must govern and the court is without power to read into the contract an intention that the parties themselves did not express therein. If it is contended that so far as the plaintiff is concerned, the contract was an improvident one because no time limit was placed upon the defendant within which the repairs should be commenced or completed, the answer is obvious.

It is fundamental that courts may not extend their jurisdiction and powers to construe plain and unambiguous language to relieve parties competent to contract from hardship, and courts may not relieve them from an improvident agreement in the absence of fraud or bad faith. This proposition was succinctly declared by our Supreme Court in Ullmann v. May,147 Ohio St. 468, 72 N.E.2d 63, the first and second paragraphs of the syllabus of which are as follows:

"1. Where a written agreement is plain and unambiguous it does not become ambiguous by reason of the fact that in its operation it will work a hardship on one of the parties thereto and corresponding advantage to the other. (Ohio Crane Co. v.Hicks, 110 Ohio St. 168, approved and followed.)

"2. Courts do not relieve a party competent to contract from an improvident agreement in the absence of fraud or bad faith."

See, also, the following quotation from 12 American Jurisprudence, 749, Contracts, Section 228, and supporting cases thereunder, cited at page 749 et seq.:

"Interpretation of an agreement does not include its modification or the creation of a new or different one. A court is not at liberty to revise an agreement while professing to construe it. Nor does it have the right to make a contract for the parties — that is, a contract different from that actually entered into by them. Neither abstract justice nor the rule of liberal construction justifies the creation of a contract for the parties which they did not make themselves or the imposition upon one party to a contract of an obligation not assumed. Courts cannot make for the parties better agreements than they themselves have been satisfied to make or rewrite contracts because they operate harshly or inequitably as to one of the parties. If the parties to a contract adopt a provision which contravenes no principle of public policy and contains no element of ambiguity, the courts have no right, by a process of interpretation, to relieve one of them from disadvantageous terms which he has actually made.

"There is no right to interpret the agreement as meaning something different from what the parties intended as expressed by the language they saw fit to employ."

See, also, 9 Ohio Jurisprudence, 397, Contracts, Section 173, and supporting cases therein cited at page 397 et seq., as follows:

"Where the meaning of a contract is clear upon its face, there is said to be no need, nor right, of construction. It has been stated that `the first general maxim of interpretation is that it is not allowable to interpret what has no need of interpretation. When a writing is worded in clear and precise terms, when its meaning is evident and tends to no absurd conclusion, there can be no reason for refusing to admit the meaning which it naturally presents.'"

Proceeding to the second question presented, it is our conclusion that the trial court erred in attempting to construe the contract which, on its face, is plain and unambiguous, because thereby an unwarranted legal issue was erroneously injected which had not been made an issue by the pleadings or evidence. The disputed issues of fact having been determined favorably to the defendant, there remains only a question of law, namely, a proper application of the terms of the agreement relating to repairs by the lessee. On this basis, the defendant is entitled under the facts as found by the trial court and the provisions of the lease contract to full credit for the cost of repairs, which, being in excess of the accrued rentals, creates a complete setoff in favor of defendant on its cross-petition against the rentals claimed by plaintiff in its petition.

For these reasons, the judgment of the Common Pleas Court is reversed as contrary to law, and, proceeding to enter the judgment which should have been rendered by the Court of Common Pleas, final judgment is rendered for defendant.

Judgment reversed.

KOVACHY, J., concurs.