CASES IN Law and Equity IN THE SUPREME COURT OF THE STATE OF NEW YORK. DEYO and TRAVIS VS. BLEAKLEY. B. leased to A. and I. certain premises, for brick making purposes, by lease, dated justified in entering upon the premises and selling brick enough to satisfy A Deyo . Bleakley. PPEAL by the defendant from a judgment entered at a special term, after a trial at the circuit, before a justice of the court, without a jury. The action was brought to recover the value of a quantity of brick taken by the defendant from premises occupied by the plaintiffs. The defendant leased certain premises at Verplanck, in Westchester county, for brick making purposes, to Aaron and Isaac Mackey, by lease, dated January 25th, 1853, "from the 1st day of April next, for and during and until the full end and term of five years, thence next ensuing, and fully to be completed and ended, yielding and paying therefor unto the said party of the first part, his heirs and assigns, yearly and every year, during the said term hereby granted, the yearly rent or sum of four thousand dollars, lawful money of the United States, in equal quarter yearly payments, to wit, on the first days of April, July, October and January, in each and every year during the said term." The lease also contained a covenant on the part of the lessees, to the effect that they would at all times have and leave upon said yard brick enough to secure one quarter's rent, and in case of default in the payment of such rent, the lessor was authorized either to re-enter and take possession of the premises, or to enter upon said yard and take therefrom, and sell at fair market prices, brick enough to pay the rent so in arrear and unpaid. The defendant entered under the power contained in the last named clause, and took brick of the value of $414, for the payment of the rent of said premises, for the quarter beginning October 1, 1854, and ending January 1, 1855. The brick were so taken by the defendant, October 17, 1854, claiming that the rent of said premises was payable in advance. The plaintiffs were assignees of Aaron Mackey, one of the lessees, and the brick in question were taken from their possession. Two quarter's rent of the premises, which accrued from April 1, 1854, to October 1, 1854, was paid by two notes dated on or about the first days of April and July, 1854, payable some two months after date, with interest. The above are all the facts material to the case, and were admitted by the parties. The judge who Deyo v. Bleakley. held the circuit decided that the rent was not payable in advance, and ordered judgment for the plaintiffs for the value of the brick. Ferris & Frost, for the plaintiffs. D. W. Travis, for the defendant. By the Court, BIRDSEYE, J. There are few subjects upon which greater diversity of opinion has prevailed than in regard to the manner in which time should be computed, in the case of a contract like the lease in question in this action. The nature of the conflict that existed for a very long time upon the subject, clearly appears from the review of the previous cases made by Lord Mansfield, in Pugh v. The Duke of Leeds, in Cowper, 714. The true rule was undoubtedly laid down in that case, that the word "from" a day, may either include or exclude that day, according to the context and subject matter. And the court will construe it so as to effectuate the intentions of the parties, and not to destroy them. It is at the least very singular that the learned court which delivered this luminous decision should, but three years before, have given precisely an opposite judgment upon almost precisely the same state of facts. (See Doe v. Watton, Cowper, 189.) The rule adopted in Pugh v. The Duke of Leeds is well stated in 2 Parsons on Contracts, 175, thus: that the computation shall always conform to the intention of the parties, so far as that can be ascertained from the contract, aided by all admissible evidence. Let us look at the terms of this whole contract, in the light of these principles. The lease bears date January 25, 1853. The premises granted are a brick yard; and the landlord agrees to leave upon the yard all lumber then on said yard, and used for the purpose of manufacturing brick thereon, all arch irons and doors, and all wheelbarrows then thereon, theretofore used by Bennett, (the former occupant.) It also clearly appears that there were upon the leased premises, shafting, machinery fix Deyo v. Bleakley. tures, sheds, pits, boarding houses, barn and stables; and also that the clay for making the brick was to be taken from pits upon the demised premises. The lessees were also to have the use of all brick material, sand and clay, for the purpose of making brick on said yard, to be found on said premises. The period for which the lease was granted was "from the first day of April next, (1853,) for and during and until the full end and term of five years thence next ensuing." There is also a covenant for a renewal of the lease for a further period of five years, at the option of the lessees, the new lease to be "similar in all respects" to the old one. The annual rent reserved is $1000. Such, then, are the privileges granted by the lessor; the use for five years, with a privilege of extension to ten years, of such a property, both real and personal, at so large a rent; the personal property of a nature likely to suffer great depreciation during so long a term; and with the authority to convert the soil into brick, and sell the same, thereby diminishing the value of the freehold, and tending to deprive the lands and the fixtures of the plaintiff of their chief value as a source of future revenue. In return for such concessions, it was natural that the defendant should require, and that the lessees should covenant to give him, all the security which the nature of the case would permit. Accordingly, we find a covenant authorizing the plaintiff to re-enter, upon the non-payment of any part of the rent reserved, for the space of ten days after the day of payment, or "if default shall be made in any of the covenants" of the lessees. The tenants also agree that at the expiration or other sooner determination of the term thereby granted, they will leave upon the yard, lumber, arch irons and doors, wheelbarrows and other articles, to correspond with in number, and be equal in value, to those left thereon by the landlord. They also agree to have and leave on the yard, at all times, brick enough to secure one quarter's rent; and in case of the default of payment of the rent, the lessor is authorized either to re-enter and take possession as above mentioned, or to enter upon said yard and take therefrom, and sell at fair market prices, bricks enough to pay the rent so in arrear and Deyo v. Bleakley. unpaid. The lessees also bind themselves to keep the said yard and all shafts, machines and the fixtures thereto, sheds, pits, boarding houses, barns and stables, in complete order and repair during the term, and at the expiration or other sooner determination thereof, to leave all of these things in good and perfect order and repair, so as to be in complete readiness for next season's work upon said yard. They also covenant to remove the gravel and screenings necessarily made in the working of the yard, according to the directions of the defendant; also to take and use the clay upon said premises to the bottom thereof, and to use it clean as they go; and finally, that they will not sub-let or re-let said premises, or assign the same or any part thereof, without the written consent of the lessor. It is impossible not to perceive in all these provisions a careful design, upon the part of all these contracting parties, to give to the landlord the amplest security which the nature of the leased property or the means of the debtors admitted, for the large sums of money that might, in the course either of five or ten years, become due to him for rent. The power to convert the clay and other materials on the yard into merchandise and sell the same, and the quasi chattel mortgage on the brick to be manufactured on and from the plaintiff's ground, to the extent of one quarter's rent, are especially worthy of note, in my view of this case. It seems to me that all these circumstances and provisions are entirely in harmony with what is certainly a consistent reading and construction of the habendum clause of the lease, upon which the main question in this case arises. The tenants who had taken the plaintiffs' lands for such purposes, and with such powers, and who had in substance mortgaged the brick they might make for their rent, might well bind themselves to pay their rent in advance. As to the first quarter's rent, the quasi mortgage could give little if any security; and as to the future quarters, the nature of the property, and its liability to depreciation and injury, seem to afford good reason to the lessor for insisting that the rent should not be suffered to accumulate in arrears, while the brick yard and its fixtures might be left to go to ruin; |