
    Selzer et al. v. Turske et al.
    (Decided February 6, 1928.)
    
      Messrs. Locker, Green & Woods, for plaintiffs in error.
    
      
      Messrs. Wheeler é Adrion, for defendants in error.
   Vickery, J.

This cause came into this court on a petition in error to the common pleas court of Cuyahoga county, and there has been filed by the defendant in error Fred Turske a cross-petition in error against Annie Selzer, but it will not be necessary to take cognizance of this cross-petition in error in the view that we take of this case.

The case was started in the common pleas court by Lorenz Selzer and Annie Selzer, who were plaintiffs below, to quiet title and to cancel a lease that was on record in the recorder’s office against the real estate described in the petition. To this petition an answer was filed, and a cross-petition asking for damages, and, when you get by that proposition, and view the record, you have a curious situation, and the record itself would be the best comment to make upon it.

It seems that the Selzers were the owners of the piece of property described in the petition, and that they originally leased the property to the defendant in error Fred Turske -for one year, with the right of renewal for three years more, which lease was in writing and contained the following provision:

“Parties of the second part hereby agree to and with the parties of the first part that they will vacate said premises, said party of the first part giving said parties of the second part at least thirty days’ notice in writing of their intention to sell said premises, and said parties of the first part shall pay to the parties of the second part the sum of $200.00 on or before the expiration of said thirty days’ notice, and said parties of the second part shall hereby vacate said premises.”

The defendant went into possession under this lease, and occupied the premises for some time, but, before the first year was up, the owners served upon the defendant lessee a notice in accordance with the provisions of this lease and tendered and paid to the defendant the sum of $200, whereupon he vacated the premises in accordance with the provisions of the lease, but, inasmuch as the lease was of record, and was not canceled, it constituted a cloud upon the title, and this suit to quiet title was commenced. Thereupon the cross-petition for damages was filed, and the court granted the application to quiet title, but submitted the question of damages to a jury, and, under the charge of the court, the jury found a verdict in favor of the defendant on his cross-petition, in the sum of $1,750, which was reduced by the court to $1,454.80. It is to reverse that judgment that error is prosecuted here by the Selzers.

The contract being in writing and signed by both Mr. and Mrs. Selzer, who were the owners of the property, it is rather difficult to understand why Mrs. Selzer should have been released, and, but for the view we take of this case, the cross-petition in error of defendant in error would undoubtedly be available.

Now here was a plain, unequivocal, unambiguous provision in this contract that the plaintiffs could terminate this lease at any time by giving notice, .not less than 30 days, of their intention to sell this property, and paying $200, and the evidence uncon¿radicted shows that they did so give the notice and pay the $200. Now this in effect amounted to a provision in the lease that it might be terminated at any time by the plaintiffs, the $200 being in the nature of liquidated damages for the termination of the lease, and this was agreed to by all the parties to the contract.

It seems, however, that the theory of the' cross-petition was that the lease of this property was not to be terminated, unless there was a sale of the property, and that defendant was so ingenious in his theory that he prevailed upon the court to admit evidence as to conversations that took place at the time this contract was made. Now, if there is any rule of evidence that is well established, it is that prior or contemporaneous parol agreements cannot be introduced in testimony, if they contradict or vary the terms of the writing. All authorities on evidence hold that, where a contract is reduced to writing, all that took place prior to, and contemporaneous with, the writing is merged in the writing.

Now it is argued that by taking these conversations, so called, into account, this phrase, already quoted, was ambiguous, in that it did not state when they intended to sell, or that they had a present purchaser, and the court admitted evidence to show these conversations; there was no application made to reform the writing, but defendant intended to and did impeach the writing by introducing extraneous evidence.

There is no ambiguity in the words of the paragraph that is quoted in this opinion. They are plain, unambiguous, clear, and concise. They did not need any explanation or anything to make them clear. If, as a matter of fact, other things were agreed to at the time this contract was made, and the writing did not express the intention of the parties, as voiced by their words, then it would have been proper to have attempted to reform this contract, and then to enforce it, or to recover damages after it was so reformed. Nothing of that kind having been done, all the evidence that was introduced in this case was improperly introduced, and the court improperly permitted the jury to speculate upon what the parties intended, when the whole intention, so far, as this lawsuit is concerned, was in the writing itself. I think the authorities are unanimous on the question that, when a contract is in writing, the interpretation of that contract is up to the court, and he cannot divest himself of his duties by throwing it upon a jury.

We think that the clause in the contract is. clear, unequivocal, and unambiguous, and it gave the plaintiffs the right to terminate this contract by serving the notice and paying the money, and further than that no court is interested. It was a contract made by the parties, and, if they were foolish enough to make such a contract, it is not up to the court to make another contract for them.

We think, therefore, that the court erred in admitting evidence to show what the intention of these parties might have been. We think the court erred in permitting the jury to decide what this contract was. We think the court erred in rendering a judgment for the defendant on his cross-petition. We think the court erred in not granting a motion to direct a verdict at the close of all the testimony, as there was no evidence that would warrant a submission to the jury of this question. We further find that the court erred in the measure of damages that he adopted. The measure of damages is not the prospective profits that these people might have made. That is too speculative. They might have made a profit for a week or a month; then they might have made a flat failure, when there would have been no profits whatever. The measure of damages, if defendant had a good lease — which was for $50 a month and it was worth $150 a month — the measure of damages, I say, would be the difference between what they had to pay for the lease and what the lease was really worth, and to submit the question of prospective profits is so highly speculative as to render erroneous a verdict based upon any such finding as that.

We find, therefore, and hold that the court erred, in the various ways outlined, in the admission of the evidence; in submitting the question to the jury; and that the findings were against the weight of the evidence. The case must therefore be reversed and remanded. It will at once be seen from the view we take that it will be unnecessary to consider the cross-petition in error of the defendant against Annie Selzer.

Judgment reversed and cause remanded.

Sullivan, P. J., and Levine, J., concur.  