Michele LEONARDI and Jennie Leonardl, husband and wife, Appellants,
Ruth FURMAN and Anna Meyers, Appellees.
[83 Ariz. 63] Darrow & D'Antonio, and Burt Haberman, Tucson, for appellants.
Arthur Goldbaum and Jo Ann D. Diamos, Tucson, for appellees.
This is an appeal from a judgment under the declaratory judgment act in favor of plaintiffs-appellees and against defendants-appellants, declaring a lease executed by appellees as lessor to appellants as lessee, on October 15, 1952, for a period of five
years, to be a valid, subsisting and enforceable lease agreement, and fixing defendants' attorney's fees under the provisions of the lease in the sum of $250. The parties will be hereinafter referred to as plaintiffs and defendants.
The facts are that plaintiffs leased the premises involved to defendants to be used by them as a restaurant. Defendants went into possession and occupied the premises as such until it was completely destroyed by fire on July 18, 1955. On July 28 following, defendants through their attorney, by letter, declared the lease terminated under the provisions of section 71-303, A.C.A.1939 (now A.R.S. § 33-343) providing that where leased premises are destroyed the lease automatically terminates unless otherwise provided in the lease contract.
Plaintiffs brought this action on August 10, 1955 seeking a declaratory judgment, interpreting the lease with the result above stated.
It is conceded by both parties to the litigation that the solution of the primary issue in the case depends upon the interpretation to be given the following clause in the lease contract:
'If at any time during the term of this Lease, the said premises shall be destroyed by fire, by the elements, by earthquake, or any other inevitable casualty or be so damaged by fire, by [83 Ariz. 64] the elements, by earthquake, or any other inevitable casualty that the said premises cannot be repaired or restored within one hundred fifty working days from the date of such damage, this Lease, shall at the option of either party, become terminated and rights hereunder shall cease nd terminate and the Tenant shall be entitled to be reimbursed for all rents paid in advance. The Tenant agrees to give the said Landlord access to the leased premises so that the necessary repairs may be resumed without delay, and it is distinctly understood that the above mentioned 150 working days shall not include such time as the premises may be inaccessible for repairs.'
They further agree that the question of the allowance of attorney's fees under the provisions of the lease, under the circumstances, depends upon the interpretation given to the following clause therein:
'Should suit be brought by the Landlord to enforce payment or to recover on any of the other terms and conditions contained in this Lease, or should the Landlord engage an attorney because of any default or violation made by the Tenant, then the Tenant agrees to pay for all attorney's fees and all costs caused by the Tenant in connection with such default and/or violation or violations.'
Both plaintiffs and defendants filed motions for summary judgment on the complaint and answer, and defendants filed a notion for summary judgment on the cross-complaint for the recovery of $200 advance rent paid by defendants to plaintiffs, October 15, 1952, for the month of September 15 to October 15, 1957. The court denied both of defendants' motions and granted plaintiffs' motion and rendered its judgment accordingly with findings of fact.
Defendants' first assignment of error rests upon the claim that the court misinterpreted the clause of the lease first above set forth. They claim that the language used therein is susceptible of but one construction and that is, upon a total destruction of the building by fire, the lease may, at the option of either party, be terminated immediately. We are unable to agree with this interpretation. The material portion of that clause when the surplus verbiage is eliminated, states in clear and concise language that:
'If at any time during the term of this Lease, the said premises shall be destroyed by fire * * * or be so damaged by fire, by the elements, by earthquake, or any other inevitable casualty that the ...