Kingsley v. Mervyn Realty Co.

Plaintiff, tenant, seeks a judgment, declaring that the option contained in the lease giving defendant the right to cancel upon sale of the property has been exhausted and is of no further effect. Defendant counterclaims for judgment that upon payment to plaintiff of $1,500 he be awarded cancellation of said lease.

The lease provided that “ in case of sale it is agreed this lease can be cancelled on the payment to party "of the second part of $1,500 but it is agreed that the [lessor] shall give [the lessee] sixty days notice to vacate.”

On December 14, 1923, the lessor notified the lessee of the sale of the premises and continued, “ in accordance with the provisions contained in lease * * * you are required to surrender said *469premises. The undersigned fixes February 14, 1924, as the date when said lease shall terminate, and upon your surrender of the premises, will pay to you the sum of $1,500 in accordance with the provision in said lease.” The lessor, however, failed to make payment, insisting mistakenly that surrender by the lessee was a condition precedent to payment. Plaintiff attempts to construe the cancellation clause as an option to enter into a contract to repurchase the lease, which lessor exercised by the notice, and urges that by failure to pay on February fourteenth the lessor breached his contract to repurchase, and thereby lost all rights thereunder.

The cancellation clause, however, was not an option to enter into a contract to repurchase. It was a condition, the performance of which would terminate the lease. The lessor must do two things to perform the condition, give sixty days’ notice and pay $1,500. He gave the notice, but failed to make the payment. The lease, therefore, was not terminated. But it does not follow that the lessor cannot hereafter terminate the lease by giving a new notice and paying the $1,500. The condition is not destroyed by failure completely to perform it. An abortive attempt to cancel does not exhaust the right.

Defendant’s counterclaim seeks specific judgment of cancellation. This cannot be granted because the condition has not been performed. The landlord must give a new notice and make the payment in accordance with the terms of the lease, Counterclaim dismissed. Judgment for defendant.

Judgment accordingly.