Opinion
Appeal from the District Court, Fourth Judicial District, City and County of San Francisco.
On the 12th day of October, 1859, the plaintiff leased to Thomas J. Gately certain lots in San Francisco, for the term of fifteen years commencing on the said day. The lessee covenanted in the lease to pay, the first two years, the yearly rent of thirty-six hundred dollars in equal monthly payments of three hundred dollars each, monthly in advance, on the 12th day of each and every month; the third, fourth and fifth years the yearly rent or sum of forty-eight hundred dollars, payable in monthly installments of four hundred dollars per month; the next following five years the yearly rent or sum of six thousand dollars, payable in monthly installments of five hundred dollars per month; the eleventh year of said term, the yearly rent or sum of six thousand six hundred dollars, payable in monthly installments of five hundred and fifty dollars per month; the twelfth year the yearly rent or sum of seventy-two hundred dollars, payable in monthly installments of six hundred dollars per month; and the last three years of said term the yearly rent or sum of eighty-four hundred dollars, payable in monthly installments of seven hundred dollars per month.
The lease contained the covenant with regard to taxes mentioned in the opinion. Between the first Monday in March and the first Monday in July, 1874, the property was assessed for taxes, and the amount of the State, city and county tax was nine thousand four hundred and thirty-three dollars and ninety cents. The lessee failed to pay the same, and the lessor paid it to prevent the property from being sold. The lessee died in 1866, and the defendant was his executor. This action was brought to recover the tax. The plaintiff had judgment in the court below, and the defendant appealed.
COUNSEL:
Gunnison & Booth, for the Appellant, argued that it was the intention of the parties that the lessee should pay only such taxes as became due and payable while he was in possession of the demised premises, and that although the rent was calculated by the civil or calendar year, yet the taxes were calculated by the fiscal year. They cited Thompson v. McKay (41 Cal. 228), and Morrison v. Wilson (30 Cal. 347).
H. H. Haight, for the Respondent.
If there is any ambiguity in the contract, it must be construed most strongly against the party making the covenant or promise; this is a well-settled and reasonable rule. Verba chartarum fortius accipiuntur contra proferentem. (Broom's Maxims, 456; 2 Parsons on Contracts, 18 to 21.)
The following clause is decisive of the general intent of this contract, and is in terms which admit of no quibble whatever: " The said several rents to be paid, free and clear of all charges, assessments and payments whatsoever, assessed or imposed upon the said premises in anywise whatever, during the continuance of said term." This shows what the lessor and lessee intended and understood.
JUDGES: Crockett, J. Mr. Chief Justice Wallace did not express an opinion.
OPINION
CROCKETT, Judge
The lease declared upon was for a term of fifteen years, commencing on the 12th day of October, 1859, and amongst others contained the following provisions, viz.: That the rents should be payable, " free and clear of all charges, assessments and payments whatsoever assessed or imposed upon the said premises, or any part thereof, in anywise whatsoever, during the continuance of the said term," and that " the said party of the second part (the lessee), his heirs, executors, administrators or assigns, shall and will, at their own proper costs and charges, bear, pay and discharge all such taxes, duties and assessments whatsoever, extraordinary as well as ordinary, as shall or may during the term hereby granted be charged, assessed or imposed upon the said demised premises, including the taxes for the fiscal year 1873-4." The lease expired October 12, 1874, and the lessee having failed to pay the taxes for the fiscal year commencing July 1, 1874, they were paid by the lessor, and the action is to recover the amount so paid from the estate of the lessee. The questions to be determined are, first, whether the taxes for 1874-5 were " charged, assessed or imposed upon the demised premises" during the term, within the true intent of the clauses of the lease above quoted; and second, what effect, if any, is to be given to the words " including the taxes for the fiscal year 1873-4." As to the first point, it is clear, we think, that the taxes for 1874-5 were charged, assessed and imposed upon the land during the term, within the intent of the lease, and should therefore be paid by the lessee, unless the stipulations that the lessee should pay the taxes for 1873-4, should lead to a different conclusion. As the law for the assessment and collection of taxes stood during the fiscal year 1874-5, it was the duty of the assessor, between the first Mondays in March and July, to assess all real estate, and a lien for the tax attached as of the first Monday in March. Between the first and fourth Mondays of July, it was the duty of the Board of Equalization to equalize the taxes, and the duplicate assessment-roll was then delivered to the collector, who immediately proceeded to collect, and had authority to receive the taxes. If not paid before the first Monday of the succeeding January, they then became delinquent, and five per cent. was added thereto. It is clear from these provisions that the tax on the demised premises for the fiscal year 1874-5 were payable, and had become a lien on the land prior to October 12, 1874, when the lease expired. In the language of the lease, the taxes for that year had been " charged assessed or imposed upon the said demised premises" during the term, and were therefore to be paid by the lessee, under the express stipulations of the lease, unless his liability was limited by the words " including the taxes for the fiscal year 1873-4." But these words cannot have that effect, and must be treated as surplusage. The utmost force that is claimed for them is, that they raise an inference that the lessee was not to pay the taxes for the next succeeding year. But so vague a presumption cannot control the specific provisions of the lease.
Judgment and order affirmed. Remittitur forthwith.