The agreement for the termination of the lease was executed July 30th, 1928. It recited an indebtedness of the defendant to the plaintiff under the provisions of the lease amounting to $33,000 and provided that the defendant would, upon the execution of the agreement, pay to the plaintiff $15,000 with interest and give to it promissory notes to the additional amount of $18,000, payable some months in the future. It then contained a provision that "on August 31st, 1928, at or before 6:00 p. m. Hilton agrees to deliver to Colonial, or to such other person, firm or corporation as Colonial shall direct, full and complete possession, in order and repair of premises let and devised to Hilton by Colonial," with a further provision giving to the plaintiff the rights and remedies provided in the lease for securing possession in case of a default on defendant's part. Then follows paragraph three, the proper construction of which is the issue involved in this case, and the material terms of which are quoted in the majority opinion.
This paragraph provides that if the defendant "shall perform up to and including August 31st, 1928, all the agreements on its part to be performed in the agreement" of leasing then "the said agreement shall be terminated and ended on and as of August 31st, 1928, at 6:00 p. m." until which time it is to continue in force. Under the plain terms of this provision the defendant was obligated to pay the rent which became due in August because that was one of the agreements "on its part to be performed" before August 31st. But how *Page 83 can it be said that an obligation to pay rent not due by the terms of the lease until after August 31st was one of "the agreements on its part to be performed" up to and including that day? If it was not, then by the express terms of the contract the agreement of lease was "terminated and ended on and as of" that day. How can an action for rent be based upon the lease, when by its express terms it was terminated and ended before that rent became due? That it was the clearly expressed intent of the agreement that there should be no obligations upon the defendant to pay rent after August 31st is confirmed by the concluding clause of the paragraph, that after that date "there shall be no further rights or liabilities of either party hereto to the other under the said agreement." "Liabilities" in the primary significance of the word cannot be restricted to claims which have become due and payable. "Liability in a legal sense, is the state or condition of one who is under obligation to do at once or at some future time something which may be enforced by action. It may exist without the right of immediate enforcement." White v. Green, 105 Iowa 176, 181,74 N.W. 928; Hyatt v. Anderson's Trustee, 25 Ky. L. Rep. 132, 134, 74 S.W. 1094, 1096; Cochran and Sayre v. United States, 157 U.S. 286, 296, 15 Sup. Ct. 628. Rent accruing upon August 31st was a "liability," though not due until ten days after, and by the express provision of the agreement that liability terminated on August 31st.
It should not be forgotten that what we are bound to regard is, not the intent the parties may have had, or the intent we think they should have had, but the intent they have expressed in their agreement. The majority opinion rests upon the proposition that, as occupancy of the premises was to continue during August, the parties must have intended that rentals *Page 84 should have been paid for that month. But if they did so intend, while that might give rise to a right to have the agreement reformed, it would not justify substituting that intent for the one which is clearly expressed in the lease. Moreover, if we recall that the purpose of the lease of the premises was to carry on a retail clothing business which evidently was of considerable size, that the agreement terminating the lease was made on July 30th, 1928, and the premises were to be absolutely vacated on August 31st, 1928, at 6 p. m., the agreement that payment of the rent stipulated in the lease should follow from occupancy loses significance. And again, if reliance is to be placed upon this fact as determining the sense in which the parties used the words of the agreement, upon what grounds is it possible to sustain the ruling of the trial court excluding evidence offered by the defendant as to the negotiations of the parties prior to the making of the agreement, offered to aid in its interpretation? Mazzotta v.Bornstein, 104 Conn. 430, 439, 133 A. 677.
In this opinion HINMAN, J., concurred.