Woods v. Postal Telegraph-Cable Co. , 205 Ala. 236 ( 1920 )

In defining the meaning of the word "desire," as we conceive it to have been used in the lease-contract here involved, we have said:

"In reason and fairness it must have meant a desire accompanied by a definite intention of execution and attainment — action, in short, which would lead to practical results."

We think that counsel has misunderstood the meaning of the latter phrase, which is due perhaps to an ellipsis in its structure. We did not mean to say that any action must be actually taken in order to establish a desire to improve, but only that there must be a definite intention to proceed to action in due course.

Thus understood, there is nothing in our definition of the word, or in our construction of the contract, which is not in harmony with the case of Gunsenhiser v. Binder, 206 Mass. 434,92 N.E. 705, which is cited by counsel as a "gray horse case" in contradiction of our rulings.

In the Gunsenhiser Case, the lease-contract was, indeed, substantially like the one before us, except that its termination was to be based upon a desire "to sell" instead of "to improve." The court said:

"In order to constitute a desire to sell or convey, within the meaning of the language of the lease, it was not necessary that the plaintiff [lessor] should enter into a binding agreement to convey. Nor was an entry upon the land by the plaintiff necessary."

So, in the instant case, it was clearly not necessary, to the establishment of plaintiff's "desire to improve," that she should enter upon the premises, or make any binding contract to improve them. But if she made a lease of the premises, contemporaneously with the expression of her desire to improve, by the terms of which he disclaimed any obligation or purpose to improve, and, indeed, disabled herself from doing so (as to which the affirmative evidence is without dispute), and left the whole matter of repairs to the judgment and discretion of her intended tenant, Bromberg (as to which the evidence is in dispute), this was an unequivocal negation of the existence of any intention on her part to improve, and nullified the prima facie probative value of her declaration made to defendant. There is serious error in the assumption that Bromberg's independent desire to improve for his own convenience could supply the want of any desire or intention to improve on the part of plaintiff. Nor would plaintiff's desire to have Bromberg make some improvements for himself, merely in order to supply the required ground for terminating the lease, measure up to the requirements of the stipulation.

If, on the contrary, Bromberg was obligated by plaintiff to make substantial improvements her action was in harmony with, and not in contradiction of, her previously expressed desire and purpose.

Charges 10 and 11 properly presented this view of the law to the jury in relation to the evidence before the court.

Obviously enough plaintiff's desire to improve was not, as an abstract proposition, limited to improvements to be made through the agency of Bromberg, or of any prospective tenant. But, under the circumstances shown, having expressly disclaimed any desire or purpose to improve by her own action, or for her own purposes, and having leased the premises to Bromberg with no apparent reservation of the right to enter and make improvements — her own desire to improve, if any she had, could be exhibited and established only by her imposition of a compulsory duty upon Bromberg to make for her the improvements she actually desired and actually intended to make.

Charge 11 given at the instance of defendant and already referred to in connection with charge 10, is in the following language:

"The court charges the jury that if Bromberg simply told plaintiff's agent that he expected to change the front and do other work on the premises, but it was no part of the agreement between plaintiff and defendant that Bromberg obligated himself to do so, then plaintiff cannot recover."

The use of the word "defendant" in this charge in lieu of "Bromberg" is obviously a mere slip of the draftsman's pen — an error which, in view of the context, and of the whole tenor of the other instructions general and special, must be regarded as self-correcting and incapable of being misunderstood by the jury. As stated by counsel in brief, in urging this verbal error as a ground for condemning the charge and working a reversal of the judgment, "there was not even a claim or a contention that any agreement or contract between plaintiff and defendant obligated or attempted to obligate Bromberg to improve the premises." In short, the use of any other word than "Bromberg" in that connection was without sense or meaning. A conclusive argument that the error was in fact corrected, and the right word sufficiently indicated, by the context itself, may be found in the fact that the astute and experienced counsel who represented the plaintiff at the trial and on appeal never observed the inaccuracy complained of until the affirmance of the judgment by this court — a statement which we venture to make in view of the fact that it is now for the first time brought to our attention on this application for a rehearing. This view of the matter is perhaps strengthened by the further consideration that we ourselves failed to notice the defect in spite of repeated inspection and consideration of the language of the charge.

Similar slips of speech in instructions to juries have often been held harmless where the true sense was manifest, even though the substituted word, standing alone, would mean exactly the opposite of the word intended. South. Bell Tel. Co. v. Jordan, 87 Ga. 69,13 S.E. 202; Anderson v. Anderson, 128 Ind. 254, 27 N.E. 724; In re Spencer 96 Cal. 448, 31 P. 453; Citizens', etc., Co. v. O'Brien, 118 Ill. 174, 8 N.E. 310; O'Connor v. Langdon,3 Idaho, 61, 26 P. 659; Shipley v. Reasoner, 87 Iowa, 555,54 N.W. 470; and many other cases.

A review of the record, and a thorough consideration of the arguments of counsel, have not led us to doubt the correctness of our original conclusions, and the application for rehearing will therefore be denied.