
    Schweller et, Plaintiffs, v. Cloyd, Defendant.
    Municipal Court, Oberlin.
    No. 1660.
   Goldthorpe, J.

This matter came on to be heard on the pleadings, certain stipulations and the evidence. At the pretrial conference, both parties stipulated the contents of the lease existing between them and tbe fact tbat notice had been given as required by law.

Tbe case is one of forcible entry and detention in wbicb tbe leased premises is being used by defendant as a “rest” or “nursing” home, caring for aged and infirm patients. Tbe lease started in 1961 for a 5-year term and a 5-year option.

Plaintiff relies on two alleged violations of the terms of tbis lease as grounds for repossession of tbe premises.

Tbe lease provided tbat defendant would be limited to twenty patients or guests for tbe basic rental. It then states: “Provided, however, tbat if more than twenty (20) patients or guests occupy tbe premises herein described Lessee shall pay to Lessor an additional One Hundred Dollars ($100.00) per month for three to five additional patients or guests.”

Plaintiff maintains tbat Defendant has breached tbe terms of tbe lease by (1) having bad 22 patients or guests on many occasions and (2) by living in tbe home with bis own family, consisting of a wife and five children.

Considering tbe second matter first, tbe evidence showed tbat Plaintiff knew the family of Defendant was living in tbis home from tbe time they moved in. Tbe relationship between tbe parties was good and they mixed socially, on one occasion enjoying a barbecue together on tbe leased premises. Following tbat occasion, various difficulties intervened between tbe parties and upon complaint by Plaintiff, Defendant moved bis family from tbe home. Nowhere in tbe lease is there any mention of whether occupation of tbe premises by tbe family of Defendant was banned. Tbe lease refers only to “patients or guests. ’ ’

As to the number of “patients or guests” boused on tbe premises, the evidence was clear tbat on many occasions Defendant did have 22 people present in tbat category. Efforts to prove more than 22 present were not successful.

We have thus reached tbe crux of tbe problem. Tbe rental to be paid for 21 or 22 “guests or patients” is not touched upon anywhere in tbe lease either in fact or implication.

In 33 Ohio Jurisprudence (2d), 344, Section 72, we find tbe following wbicb succinctly states tbe opinion of tbis Court:

“Tbe court attempts to carry out the intention of tbe parties to a lease, and to tbe extent tbat such intent is demonstrated by the expression of the parties in the lease, such expressed intent controls. The agreement of parties to a written contract or lease is to be ascertained from the language of the instrument, and there can be no intendment or implication inconsistent with the express terms thereof. A court cannot imply exceptions in the lease not shown by the language which the parties choose to use. In construing a lease, a court should not, under the guise of doing substantial justice, ignore the agreement of the parties by making a contract of its own; there must be some legal basis for the execution of such power. If some contingency which occurs is one which might have been foreseen by the parties and was not provided for in the lease, the court will not insert by construction for the benefit of one of the parties an exception or condition omitted from the lease.”

The Court finds for the Defendant and instructs his counsel to prepare a Journal Entry in accordance with this opinion.  