The subject of the controversy here is whether, under the provisions of a 10-year lease contract, the lessor was required to give 90-days' notice before May 1, 1945, in order to terminate the contract on that date. The lease was to run for 10 years unless one or the other of the parties terminated *Page 187 it under paragraph 2 of the lease contract, which is as follows: "(2) Term. To have and to hold for the term of ten years from and after the first day of May, 1940, but subject to termination by lessee or lessor at the end of the fifth year upon ninety-days' written notice from lessee to lessor or from lessor to lessee; provided that, if either party exercises such right of termination, the party so doing shall pay to the other party the sum of $1500 prior to the termination date."
To terminate means to end. The only way it could be ended under such a provision, prior to the 10 years nominated in the lease, was for the specified 90 days to have been given, otherwise the lease would run beyond May 1, 1945, the end of the fifth year. This lease could only be terminated under such provisions, prior to the 10-year period, on one date, May 1, 1945, which was the end of the fifth year, and then only "upon ninety days written notice" having been given. I think that the plain meaning is that 90-days' written notice must have been given 90 days prior to May 1, 1945, otherwise the lessor would have failed to exercise his option to terminate the lease at the end of the 5-year period, and the lease would run for the full term of 10 years — not having been terminated in accordance with the provisions of the lease. Under the majority opinion, if the notice was given on April 25, 1945, only 5 days before May 1, 1945, the lease could be terminated after May 1, 1945, which is the end of the 5-year period, when, on the contrary, the lease states that it could be terminated "at the end of the fifth year upon ninety-days' written notice." If 90-days' written notice was necessary to terminate the lease on May 1, 1945, then it necessarily follows that 90-days' written notice was necessary before May 1, 1945. The lease contemplates that, if the lessee or tenant wished to terminate the lease on May 1, 1945, the landlord or lessor should be given 90-days' written notice in order to obtain another tenant; that, if the lessor or landlord wished to terminate the lease on May 1, 1945, under the provisions in question, the lessee or tenant should be given 90-days' written notice to find another place of business. Under this construction, the lease is plain and definite as to the date of notice and the date of the termination of the lease under the provisions in question. On the contrary, I think that the construction of the majority is a strained one and did construe the lease, which is definite as to dates of notice *Page 188 and termination under such provisions, so as to confuse these dates and make them indefinite and uncertain, and to create ambiguities and confusion where there should be none. Thus, in my opinion, the trial judge erred in holding that the 90-days' notice prior to May 1, 1945, was not necessary to terminate the lease on May 1, 1945, under the provisions in question. I am authorized to state that Parker, J., concurs in this dissent. *Page 189