[82 Ariz. 205] Udall & Udall and Paul G. Rees, Jr., and Ackerman & Ares, Tucson, for appellant.
Silver, Silver & Ettinger, Tucson, for appellees.
HENRY C. KELLY, Superior Court Judge.
The action was begun by appellant, as plaintiff, to recover payments made by his predecessor in interest, as lessee, to appellees as lessors, for the rent of the last five months of a five-year term, the tenant having defaulted in the payment of current rent near midway of the term and the possession having been retaken by the landlord. The claim is that these payments have unjustly enriched the landlord, that it is inequitable that he should retain them, and that the tenancy being terminated they should be returned to the lessee. The plaintiff is not the original lessee, but it may be taken for all purposes that he stands exactly in the shoes of the original tenant.
The lease is a long one. It is not practical or necessary for it to be here set forth in full; but as the precise language used in some clauses is of critical importance in reaching a conclusion upon the question now before us they will be copied verbatim. In other respects its terms, when necessary to an understanding of the facts, will be stated generally.
After the habendum clause (from August 15, 1950, to August 31, 1955) the following clauses next appear:
'The said Lessee, in consideration of the leasing of said premises aforesaid, does hereby covenant and agree to pay the Lessor as rent for the same the sum of One Hundred Twenty Thousand Three Hundred ($120,300.00) Dollars, which sum shall be payable in the following manner, to wit:
'The sum of Twelve Thousand Three Hundred ($12,300.00) Dollars upon the execution of this lease, receipt of which is hereby acknowledged, which shall represent rent of Three Hundred ($300.00) Dollars from August 15, 1950, to August 31, 1950; the sum of Two Thousand ($2,000.00) Dollars representing rent for the month of September, 1950, and the sum of Ten Thousand ($10,000.00) Dollars representing rent from April 1, 1955, to August 31, 1955; the sum of Two Thousand ($2,000.00) Dollars on the 1st day of October, 1950, and a like sum of Two Thousand ($2,000.00) Dollars on the 1st day of each and every month thereafter until the total sum of One Hundred Twenty Thousand Three Hundred ($120,300.00) Dollars has been fully paid.'
Several other promises and agreements usual to leases, some of major and some of necessarily minor importance, are set forth, as also this provision, greatly relied upon by plaintiff-appellant for lessors' relief in the event of default:
[82 Ariz. 206] 'Lessor may elect to take the following action:
(1) Retake the leased premises and declare the lease terminated and ended and all rentals paid in advance shall be forfeited as liquidated damages, and the Lessor may take proper action to recover and distrain for any rent due at the time of said termination, together with such costs and expenses and damages caused said Lessor as the result of said breach.'
Another clause relied upon by appellant may be referred to as the disaster clause, and it will be set forth hereafter as written.
The lease also, it may not be unworthy to note, with no consideration stated separately from the rent paid and reserved, granted to the tenant three options which were undoubtedly valuable, and each of which placed restrictions upon lessors' rights to dispose of their property:
1. Option of renewal,
2. Option to purchase at a set price,
3. Preferential rights to purchase at whatever price and terms ...