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CHARLES ET AL. v. B & B THEATRES

January 2, 1959

MAMIE M. CHARLES, RHEA M. KING, GEORGE MCCOWN KING, AND E.D. CHARLES, JR., BY HIS GUARDIAN AD LITEM, E.D. CHARLES, SR., RESPONDENTS,
v.
B & B THEATRES, APPELLANT.



The opinion of the court was delivered by: Stukes, Chief Justice.

January 2, 1959.

This case is concerned with the alleged liability of the lessee to make repairs to the demised premises, which consist of a moving picture theatre. It is the defendant in the above action; the plaintiffs are the devisees of the lessor. The defendant-lessee demurred to the first cause of action of the complaint, which was overruled and it has appealed.

It is alleged in the complaint that the lessor leased the property on February 6, 1939 to one R.F. Wilson (who assigned the lease to the defendant) for a period of ten years which commenced at the completion of renovation and improvements, to the cost of which the lessor contributed $4,000.00. The lease provided with respect to repairs:

"That all repairs to the said building during the life of this contract will be made at the cost and expense of R.F. Wilson, except the roof to same, and as to the roof George M. McCown (the lessor) hereby agrees to keep the same in good condition, make such repairs as necessary and pay the cost thereof."

Defendant demurred to the first cause of action in the complaint, which has been stated, upon the contention, in effect, that the quoted terms of the lease do not impose an obligation upon the lessee to make repairs, but leaves such to the option of the lessee, and that parol or other extrinsic evidence is not admissible to vary or add to the terms of the written instrument. The demurrer was overruled upon the conclusion that the lease is ambiguous with respect to repairs by the lessee in that it does not state what repairs are to be made at its expense, whether the parties intended that all necessary repairs should be made by the lessee at its expense, or whether only those which the lessee might make at its option, and that, therefore, the intention of the parties was left in doubt with respect to the actual intention upon which extrinsic evidence would be admissible upon trial. As aforesaid, the appeal is by the defendant-lessee from the order overruling its demurrer.

Upon consideration, we are constrained to agree with the trial court and to affirm its order.

It is elementary that when parties have reduced their contract to writing, the court can only look to the terms in which the parties have expressed their intentions in such writing. Lagrone v. Timmerman, 46 S.C. 372, 24 S.E. 290; Blackwell v. Faucett, 117 S.C. 60, 108 S.E. 295; Mallard v. Duke, 131 S.C. 175, 126 S.E. 525; McPherson v. J.E. Sirrine & Co., 206 S.C. 183, 33 S.E.2d 501. But when the written contract is ambiguous in its terms, which that before us is, parol and other extrinsic evidence will be admitted to determine the intent of the parties. 9 S.C. Dig., Evidence, 448, Grounds for admission of extrinsic evidence, et seq.

There is another principle which is tangent to the present problem. When a written lease is silent on the subject of repairs to the property, parol agreement relating to same may be proved. Williams v. Salmond, 79 S.C. 459, 61 S.E. 79; Holliday v. Pegram, 89 S.C. 73, 71 S.E. 367, Ann. Cas. 1913A, 33. It is a short and logical step from that to the receipt of extrinsic evidence to make certain the meaning and intent of an ambiguous provision relating to repairs in a written lease contract. Indeed, the latter is a more easily justified departure from the general rule than is the former.

Of course, we do not here hold that the lessee is obligated to make repairs; that would be prejudging the case on the merits. Like the lower court, we merely hold that the lease is ambiguous upon the matter of repairs by the lessee and is subject to elucidation by evidence aliunde the lease, from which the court may find the intention of the contracting parties.

Affirmed.

TAYLOR, OXNER, LEGGE and MOSS, JJ., concur.

19590102

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