The plaintiff brought this action upon a claim for rental of certain property in Philadelphia under a lease which is before us of record as Exhibit A, and the defendant denied liability, alleging a full release under the terms of another contract, also in the record, marked Exhibit 2. The trial court based its judgment for the defendant solely upon its construction of these contracts, holding that the language of the contracts was clear and unambiguous. The plaintiff offered certain evidence which it claimed would show the situation of the parties at the time Exhibit 2 was entered into by them, but this was excluded by the court on the ground that there was no uncertainty in the language of the contracts. To this ruling the plaintiff excepted.
The lease — Exhibit A — under which the claimed obligation arose, was from the plaintiff to the defendant, dated August 30th, 1927, and became operative November 22d 1927, for a term of ten years, seven months and eight days from the latter date, reserving a monthly rental, payable the tenth day of each month *Page 79 for the preceding calendar month. The defendant entered into possession and paid the rental required by the lease, the last payment being made August 10th, 1928, for the month of July preceding.
On July 30th, 1928, the parties made the second contract — Exhibit 2. That contract recited the giving of the lease, and further, that by the terms of that lease this plaintiff had advanced to the defendant $40,000 to assist in defraying the cost of certain alterations, additions and improvements in the leased premises, of which sum the defendant still owed the plaintiff $33,000. The recital continues: "Whereas the parties desire to cancel the said agreement [Exhibit A] and take care at this time of the said indebtedness of $33,000 in the manner hereinafter specified." The contract then provided that upon its execution the defendant would pay the plaintiff $15,000 and give four promissory notes: $5000 payable November 1st, 1928, $5000 payable December 1st, 1928, $5000 payable January 1st, 1929, and $3000 payable February 1st, 1929, a total of $33,000, and the lease was to continue till August 31st, 1928, when defendant was to vacate the premises, failing which the plaintiff reserved all rights given it under the lease for securing possession.
This brings us to the third clause of the contract — Exhibit 2 — concerning the interpretation of which the parties are not in accord. The essential portion of this clause is as follows: "Provided that Hilton [defendant] shall have made the payment and given the notes and delivered possession as herein above provided for, and shall perform up to and including August 31st, 1928, all the agreements on its part to be performed in the agreement between the parties hereto made August 30th, 1927 [Exhibit A], by which Colonial [plaintiff] demised and let Hilton [defendant] a portion of *Page 80 premises northeast corner Market and 13th Streets, Philadelphia, the said agreement shall be terminated and ended on and as of August 31st, 1928, at 6:00 p. m. until which date the said agreement shall continue in full force and effect . . . and after which date . . . there shall be no further rights or liabilities of either party hereto to the other under said agreement."
The plaintiff seeks the addition of one of the paragraphs of the draft-finding to the effect that the rental of $6250 provided for in the lease for the month of August, 1928, has not been paid. This states the fact, conceded upon the trial and in defendant's brief, that the defendant has not paid $6250 for the use of the premises for the month of August, 1928, and we shall treat it as part of the finding.
The defendant continued its occupancy of the premises to August 31st, 1928. The rent for the preceding calendar month of July was payable and paid August 10th, and plaintiff claims that the rent for the month of August was due and should have been paid September 10th, but the defendant refused payment, on the ground that it was released from that obligation by the terms of the contract — Exhibit 2.
The construction of this contract should conform to the real intent of the parties and in determining that we consider the language used in the light of the situation which existed. Reading it as a whole, we cannot escape from the conclusion that they desired to cancel the lease in such a way that after August 31st, 1928, no further rights or liabilities should accrue thereunder, to either of the parties. It follows that rights and liabilities which did accrue thereunder up to August 31st, were to be given full force and effect. If the defendant continued to occupy the premises during that month, it did so as lessee under the terms of the lease, and it,ex necessitate, incurred an obligation to pay the plaintiff *Page 81 therefore $6250 required by the lease. The only question presented then is whether any intent of the parties is manifested to release the defendant from this obligation. The contract clearly reflects a purpose in section one, that the check and notes for the indebtedness of $33,000, should be given at once upon the execution of the contract. In section two a purpose appears with equal clearness to continue the lease in all its terms to August 31st. Under this provision the situation was that on August 31st, the defendant owed the plaintiff $6250, payable ten days thereafter. Turning now to paragraph three. "Provided that Hilton [defendant] . . . shall perform up to and including August 31st, 1928, all the agreements on its part to be performed" under the terms of the lease, it is to end August 31st, "until which date the said agreement [lease] shall continue in full force and effect . . . and after which date, subject as aforesaid, there shall be no further rights or liabilities of either party hereto to the other under the said agreement" (lease).
"Further rights or liabilities" means additional ones arising under the lease, after August 31st. The rent for August cannot be so considered. The obligation to pay $6250 in ten days was a liability which had fully accrued at the time the lease terminated and no "further liability" arose when the day of payment arrived September 10th.
It would be strange indeed if these parties had intended that the defendant should have these premises for a full month free from the rental of $6250, and we can find nothing disclosed by this record, either in the circumstances or the language of these contracts, to justify such a conclusion. Other assignments of error need not be pursued.
There is error, the judgment is set aside, and the case remanded with direction to the Superior Court to