Rasch v. Safe Deposit & Trust Co.

Pattison, J., delivered the opinion of the Court. This is an appeal from a judgment obtained by the appellees against the appellant in the Superior Court of Baltimore City. The case was tried below, upon 'an agreed statement of facts showing that on or about the 26th day of January, 1909, Mary E. Reitz, predecessor in title of the appellees herein, executed unto the appellant, John Rasch, individually, a lease of the premises, No. 227 Hanover Street, in Baltimore City, for a term of five years. During the existence of this lease, “The John Rasch Company” was incorporated.

Its stock, with the exception of three shares, was held by John Rasch. On the 17th day of March, 1914, a second lease was executed by Lewis M. Reitz and Letitia E. R'eitz, life tenants under the will of Harry O. Reitz, and the Safe Deposit & Trust Company, as lessors, and The John Rasch Company, Inc., as lessee. This lease was for the term of five years, commencing'! on the first day of January, 1914, and terminating on the first day of J anuary, 1919. The John Rasch Company, Inc., was: dissolved about May 1st, 1918, and thef stock and fixtures of said corporation were turned over to the defendant, John Rasch.

On the 31st day of December, 1918, a third lease was executed, in which the Safe Deposit & Trust Company of ⁴³⁷ Baltimore, Trustee',' is named, as lessor, and Jolm Rasah, trading as Jolm Raseh Company, as lessee. Tbe term of this lease began on the 31st day of January, 1919, and ended on the 31st day of March, 1919. It appears from the record that the lease of January 26th, 1909, has been lost, hut it is agreed that it “contained substantially all the covenants, and conditions contained in the lease dated the 17th day of March, .1911,” a, copy of which is found in the record. The leased premises were leased to the lessee under the different leases for the sole purpose of “conducting therein a liquor and grocery business.” The lease of the 26th day of January, 1909, as well as the subsequent lease of the 17th day of March, 1911, contained the provision that the lessees, “will not make any substantial alterations in said premises without the consent of the parties of the first part, hereto first being had and obtained, * * * and that all improvements which they may he permitted to make, shall at the expiration or other termination of the tenancy hereby created, be and become the property of the said parties of the first part,” the lessors,.

Prior to the execution of the lease of January 26th, 1909, there was a shaft in the leased, building!, but no elevator. A block and fall was used in the shaft. After itsi execution, an elevator worked by band was erected, but before the expiration of the lease', it was removed and another, electrically driven, with motor and machinery, wa,a installed in its place. This elevator, which was attached to the building; by bolts and nuts, remained upon the premises until just prior to the 31st day of March, 1919, when, without the knowledge and consent of the plaintiffs', it, with the motor and machinery, was removed by the defendant, without injury to the building other than the holes' in the shaft caused by the withdrawal of the holts.

After its, removal it was sold by the appellant for the sum. of $100, and afterwards bought by the appellees and reinstalled in tbe building at a cost to them ⁴³⁸ of $925, the amount of the judgment recovered in this case, which it is agreed was a, reasonable cost for such installation. It is shown by the agreed statement of facts that all errors of pleadings were waived and it was agreed that the case should be treated as though the pleadings were properly at issue. ‘The claim is made by the appellees that under the terms •and provisions of the lease, .the elevator, motor and machinery, installed by the lessee, ware improvements that became the property of the lessors at the expiration or termination of the tenancy and should not have been removed from the premises by the lessee. In determining this question the intention of the parties gathered from the terms and provisions of the lease must be ascertained. The general right of a tenant h» remove fixtures and articles of personal property may be controlled by an express contract between the parties, but covenants restricting, or claiming to restrict, the tenant’s ordinary right to- remove such property are always strictly construed and cannot be extended by implication.

Fox v. Lynch, 71 N. J. Eq. 537; Montello Brick Co. v. Trexler, 167 Fed. Rep. 483. In Lindsay Bros. v. Curtis Publishing Co., 236 Pa. St. 229, 42 L. R. A. (N. S.) 546, the language of the lease there involved was very similar' to that found in the lease before us.

In that case the premises were leased to be used ns a printing and publishing establishment The lease provided that the lessee should not make alterations, additions or improvements to the premises without the written consent of the lessors and that “after such consent has been given, unless otherwise agreed upon in writing, all alterations, additions and improvements made by the lessee at his own expense, upon the premises, shall at the option of the lessor remain upon the premises at the expiration “of the lease, and become the property of the lessor.” ⁴³⁹ The lessee installed its presses and printing machinery in the building and as a part of its plant put in electric power and lighting appliances to furnish power and light for its presses. Presses were bolted to the floors and the wires were placed in conduits fastened to the walls but not imbedded therein. The lessee, in attempting to remove the electric wiring, conduits! and switchboard from the demised premises at the termination of his tenancy, was restrained by injunction issued by the lower Oourt. The Oourt in that case, in reviewing: and reversing the action of the lower Court in granting the injunction, said: “We are clear that in the lease now before us the agreement that the ‘alterations, improvements and additions,’ made by the tenant should remain upon the premises and become tbe property of the lessor was intended to apply to alterations.,, improvements and additions to the building, or to what was in the nature of a building, and not to machinery, or that which is in the nature of machinery or other apparatus forming a, part of the contents, of the building and introduced into it by the tenant, in pursuance of the business for which the building was leased. * * * Nor do we find in the language of the lease any compelling reason requiring the words ‘alterations, improvements and additions’ to be extended in their application to anything more than the building.

We see neither necessity for, nor any propriety in, holding that they should be so extended as to deprive the tenant of the right to remove personal property placed by it upon the premises during the term of the lease. * * * The same sound policy of the law which favors a tenant in the matter of the removal of trade fixtures, requires that in the construction of an agreement containing words whose meaning is doubtful, the construction of the words most favorable to tbe; tenant shall prevail. Nothing short of the clearest expression of an, agreement by the parties to1 that effect can justify the extension of the grasp of the landlord so asi to cover chattels or personal property brought upon the premises by the tenant in. ⁴⁴⁰ pursuance of the business for which the premises were leased. We find no such clear agreement in the language of the lease which constitutes the contract between the parties in this case.” The inquiry in this case is whether the installation of the elevator and the motor and machinery thereto attached were intended by the parties to be included in thei term “improvements” as used in the lease. The language of the lease is that tire lessee “will not make any substantial alterations in said premises without the consent” of the lessors, “and that all improvements which they may be permitted to make shall at the expiration * * * of the tenancy * * * become the property” of the lessors.

The meaning of this language is that the lessee was to malee no substantial alterations in the premises without first obtaining the permission of the lessors to make such alterations, and when their permission was obtained and the improvements were made, the same were to remain upon tbe premises at the expiration of the tenancy and were at such time to become the property of the lessors!. “Improvements” and “substantial alterations?’ are interchangeably used as meaning the same thing. The contemplated improvements which were to become the property of the lessors were confined to improvements in the nature of