The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1889-04-16

We are unable to find case
| where exactly the same language
is employed rs in the lease before
Us. The two nearest to it are DW-
/ reid rs. U'hitiock, 26 Wend., 90,
and Abeel rs. Radcliffe, IS Johns.
297. In the first of these cases the
| lease contained n covenant that al
the expiration of the term the build
ings erected by the tenant on the
! premises should be appraised, and
that the lessor should either pay
the appraised value or grant a new
lease of the premises for the term
of twenty years upon such terms
As he might think proper, and rs
might be approved by the lessee.
Chief Justice Nelson said "Itwould
be difficult for either party TO have
reserved a more unqualified dis
erection over the subject matter than
is here found. No data are given
by which either is bound, except
the term of twenty years every
other ingredient which enters into
and constitutes an indenture of
I lease Is left to the mutual volition
/ of the parties; the one is to grant,
/ if at all, upon such terms as he
thinks proper; the other to accept
or not, al pleasure"
In 45eel Us. Radcliffe, the COW
enant was that the lessee shall at
the expiration of the term pay for
( the buildings at the appraisal of
/ three Indifferent men to be chosen
( by the parties; or "let the said lot
for yearly rent TO be fixed by three
Indifferent men, in like manner to
be chosen by the said parties"
/ The Court said: ~ am Of opinion
that this covenant is totally void for
uncertainty" Every agreement
. which is required to be in writing,
by the Statute of Frauds, must be
certain in itself, or capable of being
made so by 3 reference TO some
thing else, whereby the terms can
be ascertained, with reasonable pre-
ciSiom, or it cannot be carried into
effect. In the case before us the
parties have omitted to state the
terms for which the new lease was
to be given and unless the Court
makes a contract for them, the de
PENDANT is without a remedy-at
least upon the case now presented
to US"
In RmgeH rs. Hmter, 6 Johns,
ch. 2i6, the lease contained a COW
enant that the lessee = should
renew the said lease, or re-demise
the lot, at such rent and upon such
terms as may be agreed upon by
and between the said parties"
Chancellor Kent said: "To re-
demise the lot at such rent, and
upon such terms as might be agreed
on, is indeed quite analogous to let
the lot for a yearly rent to be fixed
by men TO be mutually chosen, and
which was held in 46eeL Us. Rad
cli5e to be void for uncertainty, as
no term was fixed"
In W'hiHock rs. Dll6ieLd, l Hoff-
mans Oh. R., 10, the lease con-
tanned a clause that, at the end of
the term, the buildings should be
taken at a valuation, or the lessons
should grant a new lease for the
term Of twenty years, upon such
terms rs such lessons, heirs. etc,
might think proper and be APP
proved of by the tenant. Judge
Hoffman says: &" In the case before
the Court, the contract is not to
renew the old lease, but to grant
new one for the term of twenty-one
years upon such terms as the lessons /
shall think proper, and the Iessees
shall approve. l agree that this is
equivalent 10 a covenant to grant a
lease upon such terms as the parties |
shall agree upon. 1t is precisely /
the same as if it was an original |
contract for q lease. The term is +
defined, and everything else of /
rent and covenants left uncertain.
As to these, we have the express
decision Of the Supreme Court that
ut law it Is void and in the cases
in this Court which l have stated, |
there Is not 4 decision to support a
bill for performance"
In Morrison as. R0ssig75ol, ) Cal,
90, the Court held that where a
clause Of renewal in Il lease dis
closes no certain basis for the ascer-
tainment Of the rent to be paid,
such clause shall be held void for
uncertainty.
The covenant in Pray rs. Clark, /
ll3 Mass, 2S2, that "the said
Clark agrees to renew the lease of /
the above premises upon the ex-
Diration Of the above term, rent to
be pr0portiOned to the valuation of
he premises at said time" was
upon by the Court as
70lloWs: The agreement sought
20 be enforced Is not complete in
III its terms. 1t is not simply for a
of the lease. The agree
nent does not fix the rate Of rent,
nd does not permit it to be fixed
" the reservation in the original
ease. The agreement is too I'M
ertain and vague in its essential
erms to justify the Court in under