1796.

PYM

V.

the agreement; and charged, that the said agreement was duly executed by the Plaintiff, and delivered to the Defendant, who accepted the same, and thereupon began to make such repairs to the said house, as were in the said agreement BLACKBURN, mentioned; and the said repairs were completed according [ *35 ] to the terms of the said agreement at or about Christmas next after the date of the said agreement; and that the Plaintiff tendered a lease.

The Defendant Stephenson by his answer stated, that the Plaintiff at first refused the application on account for his intention of letting the premises as a private house: but the Plaintiff promised the Defendant a preference for a farther term of thirty-one years to commence at the expiration of the said term of twenty years in case the Defendant should choose to accept it at a rent to be fixed by the Plaintiff; that afterwards Martin Cole called to say, the Plaintiff expected a rent of 851. a-year: but neither at that time nor at any other time previous to the repairs being made did the said Martin Cole propose, that the Defendant should surrender the old term; nor did the Defendant either then or at any other time before or since ever consent, promise, engage, undertake, or agree, to surrender the same or any part thereof, or that the term to be granted by the Plaintiff to the Defendant should commence at any time prior to the expiration of the term then and now held by the Defendant in the premises; and that if the Plaintiff or Cole had insisted on the Defendant's surrendering the said term, or that the new lease should commence at any time previous to the expiration of the said subsisting lease, the Defendant would not have consented thereto, but would rather have given up the premises at the expiration of the subsisting lease. The answer admitted the agreement to the effect set forth in the bill; but stated, that no draft of the agreement was submitted to the Defendant; that the agreement contained no article, that the Defendant was to surrender his subsisting lease; and that he understood, the occasion of the blanks in the said agreement for the date of the commencement of the term arose from the agreement having been signed by the Plaintiff in Bedfordshire or some other place at a distance from London, where he could not conveniently obtain the counterpart of the said lease in order to insert the date,

at

1796.

PYM

V.

[ *36

]

at which the subsisting lease would expire. The Defendant admitted, that he accepted the agreement, and began to' make the repairs according to the agreement under the direcBLACKBURN. tion of Cole, whom the Plaintiff employed; that he laid out 9371, 6s. 3d. and the repairs done were nearly equal to rebuilding. The answer farther stated, that the rent, at which the premises were let by the Defendant to Hearse the undertenant, was 1307. 17s. a-year; therefore the clear rent to the Defendant is not 51. per cent. upon the sum laid out in repairs; that the repairs were not completed till about Midsummer 1792; that Cole on behalf of the Plaintiff continued to receive the rent under the subsisting lease for one quarter after the date and execution of the said agreement, viz. after the 29th of September, 1791, though if the Defendant had agreed to surrender his term immediately after the date of the said agreement, as it was dated more than a fortnight previous to Midsummer, 1791, the Plaintiff would have been entitled to the increased rent from the 24th of June, 1791; that for that quarter neither the Plaintiff nor Cole ever applied for any other rent than under the old lease. The Defendant admitted the tender of a lease for thirty-one years, commencing from the 25th of December, 1791; whereas it ought to commence from the 29th of September, 1795; that in the lease tendered the Defendant is subject to leave the premises in a good state of repair notwithstanding any casualties by fire, though by the subsisting lease the tenant is not bound to repair damage by fire; that others of the covenants were unusual; therefore the Defendant refused to accept the said lease. The answer offered to give up the agreement and all right to a new lease on being paid the money expended.

Both parties went into evidence. Martin Cole deposed, that the Defendant applied to him to procure a lease upon any terms the deponent thought proper. The deponent proposed a lease for thirty-one years at 851. a-year, Stephenson to repair, and the subsisting lease to be given up immediately upon the repairs being completed; the tenant to be allowed six months for the repairs; till which time the house was to remain at the old rent, and from the time of the repairs being completed the new rent to commence, and also the new lease, and the old one to be cancelled. The repairs took somewhat

more

1796.

PYM

V.

more time, than was expected; and the Plaintiff agreed to the Defendant's holding half a year at the old rent. The Defendant acknowledged to the deponent the great profit, he received from the house, and his obligation to the deponent BLACKBURN. for getting him the new lease; and said, he would have given a much higher rent rather than not have it again.

The Defendant Stephenson died; and the cause was revived against his representative.

MASTER of the ROLLS.

This case is attended with particular circumstances. The first question, that I thought deserving consideration, is, whether under all the circumstances of the case, and the uncertainty, that arises upon the agreement, parol evidence ought to be admitted to explain that, upon which the parties differ so widely: but upon consideration of the nature of the bill I cannot admit the evidence under all the circumstances. It is necessary to decide upon the bill and answer and the fact not arising upon parol evidence; viz. the existence of the former lease, as it stands upon the allegations in the bill and the answer, It is to be recollected, that the bill is brought by Mr. Pym, I do not say, what the case might be, if the Defendant had brought his bill for a specific performance. It is insisted for the Plaintiff, that the true meaning of the agreement was, that as soon as the tenant could conveniently repair these premises, without fixing any time, from which he was called upon so to do, from that period the old lease was to be surrendered, and a new lease to be granted. The Defendant swears, he never made such an agreement, or understood any such thing; that he never did intend or mean to surrender his lease; that he understood, the meaning of the blanks was the day, that lease would expire; which the Plaintiff, not having the lease by him in the country, could not fill up. Suppose the Plaintiff meant what he says: is the Defendant bound to perform an agreement, the Plaintiff understands one way, but which the Defendant had a right to understand another? Has the Plaintiff made out, that the Defendant acceded to that agreement? Did he ever accept an agreement binding himself to surrender the existing lease and take that tendered by the Plaintiff? I admit, there is difficulty on both sides: but

(though

[ 37 ]

Feb. 15th.

/1796.

ΡΥΜ

[ *38 ]

(though the Plaintiff, I doubt not, meant what he says,) the true construction is so much more in favour of the Defendant, and a construction a man had a right to act upon, that I cannot BLACKBURN. Compel him to perform an agreement so strange even according to the Plaintiff's construction; for if the term of the repairs being completed was the point of time, is it not common sense to say that? But was it not more proper, that he should fix a time, within which it should be done? The Plaintiff by his negligence has drawn himself into an agreement, he never meant to make. If I had been to read this agreement without any suit, I should have supposed, that the Defendant had four years to make the repairs in. He has fulfilled the agreement so far by completing the repairs. I cannot do what the Plaintiff desires. I cannot collect, that the Defendant ever consented to surrender his lease and take a lease from any other time than the expiration of the former. It would be very dangerous upon this bill and answer to permit parol evidence on either side. To let in the evidence of the Plaintiff's surveyor in opposition to the answer would be very dangerous. Therefore, as it stands, the Plaintiff is entitled to a specific performance, if he insists upon it: but he has not made out any case for a decree, that the Defendant shall accept a lease to commence at a time prior to the expiration of the former lease.

The Defendant is wrong in one point. He is bound to rebuild in case of fire, being bound to leave the premises in good and sufficient repair, and there is no exception of casualties by fire. The Plaintiff is right in that (24).

Declare, that the Plaintiff is not entitled to a specific performance of the agreement in question for the acceptance of a lease by the Defendant to commence from an earlier date than Michaelmas, 1795; and let the Master settle a lease according to the said agreement commencing from Michaelmas, 1795, in which all parties are to join, as the master shall direct; and give no costs on either side down to this time: but the Defendant by his answer submitting to give up all right and title to a farther lease under the said agreement upon the Plaintiff's paying the sum of 9371, 16s. 3d. the sum expended by him in repairs, let the Plaintiff before Lady-day next declare, whether

(24) Bullock v. Dommitt, 6 T. R. 650.

1796,

PYM

V.

whether he will accept the said offer; and in case he shall accept the said offer, then let him pay to the Defendant the costs of this suit, to be taxed by the Master, and also the said sum of 9371. 16s. 3d. after a deduction of the arrears of the BLACKBURN, rent due upon the former lease, and also rent for the said premises after the rate of 85l. per annum, from Michaelmas last to Midsummer next, to be ascertained by the Master, in case the parties differ; and let the Defendant deliver up to the Plaintiff possession of the said premises at Midsummer next, and also the said agreement to be cancelled (25).