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which deals with remedies and practice, rather than with substantive rights, the court is not impelled to insist that its constitutional validity shall be argued at this time; but it may be well to state that in assuming jurisdiction we must not be understood as determining constitutional points, or as indicating any view with reference thereto; for, until such matters are properly raised and argued, we entertain no opinion concerning them.

By lease dated March 25, 1913, defendant let to plaintiff a building in the city of Altoona "for the term of ten years from the 1st day of September, 1914, in consideration whereof" the latter agreed to pay the former "the sum of $585 per month during the said term

of ten years." It is to be noted that no "yearly rental" is mentioned, as in the clause about to be quoted; and, as we shall later point out, the subsequent use of these words, after their omission here, is significant.

The term expired September 1, 1924, and the controversy arises over the construction of the following paragraph: "At the expiration of this lease, said Aaron [lessee and plaintiff] to have the privilege of re-leasing the said premises at the yearly rental of $7,200, payable monthly at $600 per month."

At this point it is to be noted that the privilege granted is not to renew the old lease at an increased monthly rent, but to re-lease the premises on the basis of a yearly rental. In other words, instead of following the form of the original lease and mentioning simply the amount of the monthly payments, as increased, the idea of an annual term is suggested by naming an annual rental.

There is a distinction between the ordinary meaning of words, such as "the privilege of renewing this lease," which appear in the cases relied on by plaintiff, and words such as "the privilege of re-leasing said premises, at a yearly rental," etc., which appear here. To renew a lease implies not only a leasing again of the premises, but more, in that

it conveys the definite idea that all the terms of the new lease, including the period during which it is to run, are to be the same as those contained in the original lease; for to "renew" is to "revive" or "restore to existence" (Webster's New Int. Dict.; and see Rickards v. Rickards, 12 L. J. Ch. N. S. 460, 463), while to "re-lease" means simply to "lease again" or "to grant a new lease of" (Webster's New Int. Dict.). This difference of meaning between "renew" and "re-lease" has significance here, as we shall presently indicate, though, of course, under some circumstances the words might be used to express a like meaning. For instance, in Cairns v. Llewellyn, 2 Pa. Super. Ct. 599, 607 (where other authorities, used by the court below in this case, are cited), the superior court states: "The word renew or renewal is not essential [to bring the general provisions of the original lease into the contemplated one], if other words conveying the same idea are employed. 'Rerent,' 'rent again,' 'privilege of another term,' 'refusal of the premises,' and like expressions, without more, are sufficient, provided that the length of the new term is specified."

But this is far from saying "that, where the length of the term is not specified," such words as "the privilege of re-leasing the premises" must, under every and all circumstances, be given the same meaning as "the privilege of renewing the lease," so as to require the same term of years as the original lease, which in effect is the argument of plaintiff in this case.

To sustain his contention, plaintiff carries the line of authorities on which he relies too far. Speaking generally, it may be said that the cases cited by the court below, and those relied on by plaintiff, all turn on the general rule discussed in 16 R. C. L. § 390, at page 887, that a simple covenant to renew, without more, "implies a renewal on the same terms (except as to the renewal clause itself) and for the same time as the original lease, and is

(— Pa. —, 128 Atl. 665.)

therefore sufficiently certain to be binding." There is no question here as to the clause in controversy being "sufficiently certain to be binding," for the parties agree as to this, and the court below has found, without exception being taken, that "all other terms of the re-leasing contract [except as to the period] are admitted and agreed to by the parties; i. e., the premises to be let, the amount of rent and the manner of its payment, and conditions as to repairing, water, rent, and heating."

The only point raised for decision is stated in appellant's question involved thus: "Does the tenant's election to exercise the privilege of [the option] clause give him any additional or extended term, and, if so, for what period of time?"

While the clause in question omits to state in so many words precisely what the term of the new lease is to be, on the other hand, it does not provide for a "renewal" of either the old lease or of the old term, or for the privilege of such renewal, but for the privilege of "re-leasing said premises;" and, these words being susceptible of a meaning different from the former, the question is, Were they meant to have a different meaning in the present instance?

If, in seeking for the answer to the question just stated, our attention is confined to the option clause, we observe at once that, though no term is stipulated, a yearly rental is fixed, naming the amount, and then, as in the demise itself, the amount of the (increased) monthly instalment is stated. In view of this mention of the new monthly instalments, unless the words "at a yearly rental" were placed in the option clause with a purpose to measure the future term, it may be seen that they are entirely unnecessary and serve no purpose.

The demising clause names a term of ten years, and fixes a monthly rental only. Had the parties intended a term for the new lease like that in the old one, merely changing the rental, it is natural to assume that

they would have used the phraseology of the original lease, and, after providing for the privilege of renewal, would have said "at $600 per month," instead of expressly providing, as they did, for a yearly rental. Under the circumstances, the lastmentioned provision is significant, and may well be treated as bringing this case within the rule established in Pennsylvania, that, where no period of duration is mentioned in a lease, the law favors a yearly term, especially where there is an indication that the parties so intended; and in many cases the stipulation of an annual rental has been accepted as such an indication.

In Lesley v. Randolph, 4 Rawle, 123, 124, the court had the following lease before it for interpretation: "We have this day rented of George F. Randolph the store or warehouse No. 241 High street, the rent to be eight hundred [800] dollars per annum, payable quarterly."

We there said: "The lease is not expressly for any determinate period of time, and it is only by construction that a limitation can be affixed to it. It, at an early period. in England, would have been considered a letting at will, but, as it is not so in express terms, it would at the time of our Revolution have been deemed a lease from year to year; and more especially so, as an annual rent is reserved to be paid. 2 Bl. Com. Chitty's ed. 147, and note 11; Adams, Eject. 102, 103. Sir William Blackstone says, speaking of tenancies at will: 'Courts of late have rather held them to be tenancies from year to year, so long as both parties please, especially where an annual rent is reserved. 2 Bl. Com. 147. In Roe ex dem. Bree v. Lees, 2 W. Bl. 1173, 96 Eng. Reprint, 691, Lord Chief Justice De Grey says: 'All leases for uncertain terms are prima facie leases at will; it is the reservation of an annual rent that turns them into leases from year to year.' And Sir J. Mansfield, Chief Justice in Richardson v. Langridge, 4 Taunt. 131, 128 Eng. Reprint, 278, lays down the

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same rule in a case put by him by way of illustrating it in the following words: 'If there were a general letting at a yearly rent, though payable half-yearly or quarterly, and though nothing were said about the duration of the time, it is an implied letting from year to year.

It also comes directly within the description of a lease from year to year, as it is given by Messrs. Chambers, Bingham, and Comyns, who have each written and compiled a treatise on this subject. Mr. Chambers, in his work, page 355, says, that 'a general taking at an annual rent is a lease from year to year.' See Bingham, Land. & T. 177, and Comyn, Land. & T. pp. 7, 8, 91, and 303, all to the same effect.

I, however, do not wish to be understood as entertaining the opinion that a lease for a year, and so from year to year as long as both parties shall please, is a lease for the term of two years certain at its commencement. My idea of it is My idea of it is this: That it is binding prospectively on the parties for one year only, capable, however, of being extended to a second, third, fourth, or fifth year, and so on, unless determined by the dissent of either party, which may be done at the close of any one year, by giving three months' previous notice to that effect, but at no time before the close of a year after it has once commenced."

See also Hey v. McGrath, 81* Pa. 310; Jones v. Kroll, 116 Pa. 85, 88, 89, 92, 8 Atl. 857; 24 Cyc. 1028, ¶ 2, § b. Of course, Lesley v. Randolph did not involve a new letting following a prior term, but the principles there laid down are more pertinent in construing the present contract than those cited by the lower court.

The three authorities mainly relied on by the court below to sustain the principle applied by it in reaching the decision here appealed from, that "the privilege of a renewal extends the lease for the term of the original lease," are all distinguishable on their facts from the case at bar.

In Karn v. Di Lorenzo, 95 Conn. 267, 111 Atl. 195 (Connecticut supreme court of errors), there was a written lease for three years containing the provision, "with privilege of renewal." Defendant contended that the words employed were too indefinite and uncertain to constitute a contract for a new term. In disposing of this contention, the court said: "This clause is certainly brief, but under well-settled principles of interpretation it is sufficient to constitute a good covenant. It has uniformly been held that a general covenant 'to renew' implies a renewal on the same terms and for the same times as the original lease, and therefore is sufficiently certain to be enforceable."

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Thus it may be seen that this case, differing from the one at bar, falls strictly within the rule that the bare right to renew a lease, without more, means the right to a renewal for a term similar to that in the original lease.

In Kollock v. Scribner, 98 Wis. 104, 73 N. W. 776, the lease was for ten years, "with the privilege of a renewal," nothing more of significance being said, which, of course, brought the case within the rule just stated.

Phillips v. Reynolds, 20 Wash. 374, 72 Am. St. Rep. 107, 55 Pac. 316, decides merely that, under a lease for a fixed term, containing a clause that, at the expiration thereof the landlord would either buy improvements made by the tenant or "extend this lease," without anything to show how long the extension should be for, the landlord could not escape his liability to purchase the improvements by a mere nominal extension of one day.

There is no effort here, as in most of the prior cases, to defeat the contract, for appellant admits that appellee has the right to a new term under the provisions of the original lease as changed by those of the option clause, and appellee desires to take advantage of that right, whatever it may be. The only question concerns the duration of the new

(— Pa. —, 128 Atl. 665.)

term, and, as to this, the clause itself furnishes the key with sufficient precision to take the case out of the rules relied on by the court below, and also out of control of the rule that, "in construing provisions relating to renewals, where there is uncertainty, the tenant is favored" (Kaufmann v. Liggett, 209 Pa. 87, 67 L.R.A. 353, 103 Am. St. Rep. 988, 58 Atl. 129; Stetler v. North Branch Transit Co. 258 Pa. 299, 101 Atl. 980; Hunter v. Johns, 275 Pa. 532, 119 Atl. 605) likewise relied on by the court below. In short, none of the cited authorities approximately presents the combination of contractual facts which appear in the instant appeal, and none of them controls this case. According to the option clause before us, plaintiff is entitled to lease the demised premises again, but not for the period of the original lease; lege of re-leas- he is entitled to a ing-effect. yearly term, at the increased rental of $7,200 per an

Landlord and tenant-privi

num, under the essential provisions (Rutgers v. Hunter, 6 Johns. Ch. 215, 218) of the original lease as varied by those stated in the option clause, and the court below erred in deciding otherwise.

We have not discussed other parts of the contract between the parties, because, on the record before us, they are not of any particular help

in construing the option clause. We may state, however, that the lease provides for certain alterations and repairs to be made by the lessor and for others by the lessee, and it stipulates that the latter is to "pay the water rent and heat the building at his own expense;" while the option clause states that the lessee is to make "his own repairs and improvements, paying the water rent and furnishing his own heat, as per the terms herein named.” Plaintiff's counsel attempt to detach the phrase, "as per the terms herein named," from its position at the end of the clause, and to attach it to the words at its beginning, so as to make the clause read: "At the expiration of this lease, said Aaron to have the privilege of re-leasing as per the terms herein stated."

There is no warrant for so reading the clause; the phrase in question occurs at the end thereof and merely qualifies the preceding words "paying the water rent and furnishing his own heat," as to which no change is made between the original contract and the contemplated lease.

The declaratory judgment is set aside and the court below is directed to enter one in accord with the views expressed in this opinion; costs to be divided between the parties litigant.

ANNOTATION.

Construction of provision in lease giving privilege of "re-leasing."

In the reported case (AARON V. WOODCOCK, ante, 1251), it appeared that a lessee had a ten-year lease on certain property. At the expiration of the lease a controversy arose over the construction of a provision of the lease granting the privilege of "releasing" the premises at the yearly rental of $7,200, payable monthly at $600 per month. On the question whether the lessee was entitled to a new term of ten years or only to a

term from year to year, it was held that he was entitled only to a term from year to year. The decision in this case is based on the meaning of the word "re-lease" as distinguished from the word "renew." It is pointed out in the decision that the word "renew" implies not only a leasing again of the premises, but more, in that it conveys the definite idea that all the terms of the new lease, including the period during which it is

to run, are to be the same as those contained in the original lease, while to re-lease means to lease again. A search has failed to disclose any other case in point.

The question what constitutes sufficient notice of the exercise of an

option of renewal in a lease is treated in the annotation in 1 A.L.R. 343.

As to the effect of the lessee's failure or delay in giving notice within the specified time of his intention to renew a lease, see the annotation in 27 A.L.R. 981. M. H. B.

ERNEST BURWELL et ux.

V.

SOUTH CAROLINA TAX COMMISSION et al.

South Carolina Supreme Court — December 31, 1924.
(S. C., 126 S. E. 29.)

Husband and wife, § 115 validity of partnership agreement.

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1. Under a constitutional provision that a married woman shall have power to contract and be contracted with in the same manner as if she were unmarried, she may enter into a business partnership with her husband.

[See note on this question beginning on page 1264.]

Fraudulent conveyances, § 27

right

of tax commission to attack conveyance by taxpayer to his wife.

2. A transfer by a man to his wife of a partnership interest in his business, in consideration of an invalid antenuptial agreement, made at a time when no income taxes were due,

and without fraudulent intent to evade the payment of taxes to accrue in the future, cannot be attacked by the tax commission merely because the effect is to yield less taxes to the state than would have resulted had the property remained in possession of the husband.

ORIGINAL PROCEEDING for injunction to restrain defendants from assessing and enforcing collection of an additional tax claimed by reason of disallowing a partnership return and the separate returns of petitioners as copartners constituting the partnership. Granted. The facts are stated in the opinion of the court.

The agreed statement of facts on the submission of the controversy, without action, under the provisions of § 675 of the Code of 1922, is as follows:

"(1) That the petitioners are husband and wife, and resided at the times hereinafter mentioned, and still reside, in the city of Spartanburg, county of Spartanburg, state of South Carolina.

"(2) That during the year 1923, said petitioners conducted an automobile sales business in the city of Spartanburg, county and state aforesaid, under the following circumstances: The petitioner Ernest Burwell made an oral contract before marriage with the petitioner

Faith C. Burwell (who was a daughter of wealthy parents), that if she would marry him he would give her one half of all his property, including a half interest in the capital invested in his automobile sales business. That upon said understanding and agreement they were married. That said Ernest Burwell immediately thereafter conveyed to Faith C. Burwell a lot in the city of Spartanburg, on which to build their home, and in compliance with said. antenuptial agreement, one half of the capital invested in his automobile sales business in the city of Spartanburg was treated as the property of his wife, Faith C. Burwell, and each of said petitioners

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