A-94595, MAY 3, 1939, 18 COMP. GEN. 820

A-94595: May 3, 1939

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THAT IS. IS UNAUTHORIZED NOTWITHSTANDING THE CONTENTION THAT IT WAS MUTUALLY UNDERSTOOD THAT THE SOLE PURPOSE OF THE RELEASE WAS AS TO THE RESTORATION OF THE PREMISES LIABILITY OF THE GOVERNMENT ONLY. 1939: REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 3. THE CLAIM WAS DISALLOWED BY SETTLEMENT OF THIS OFFICE UNDER DATE OF NOVEMBER 29. FOR THE REASON IN SUBSTANCE THAT THERE WAS NO OBLIGATION ON THE GOVERNMENT TO PAYMENT AFTER DECEMBER 23. THE REGIONAL FORESTER NOTIFIED THE LESSOR THAT "IN ACCORDANCE WITH PROVISION OF PARAGRAPH 14 OF LEASE * * * NOTICE IS HEREBY GIVEN YOU THAT SAID LEASE IS TERMINATED AS OF JANUARY 4. RENTAL PAYMENTS TOTALING $139.50 WERE MADE AS PROVIDED FOR UNDER THE LEASE TO AND INCLUDING THE PERIOD ENDING DECEMBER 31.

A-94595, MAY 3, 1939, 18 COMP. GEN. 820

LEASES - RENT - VACATING OF PREMISES PRIOR TO END OF LEASE YEAR - RELEASE OF UNEXPIRED PERIOD RENT LIABILITY WHERE, UNDER A LEASE PROVIDING FOR RENT AT A STIPULATED RATE "PER YEAR OR ANY FRACTION THEREOF" WITH PAYMENTS "AT THE END OF EACH MONTH, OR AT THE TERMINATION OF THIS AGREEMENT, IN THE EVENT OF ITS PRIOR TERMINATION," THE LESSOR, AFTER NOTICE BY THE GOVERNMENT, IN ACCORDANCE WITH THE TERMS OF THE LEASE, OF ITS INTENTION TO VACATE PRIOR TO THE END OF THE LEASE PERIOD, EXECUTED AN AGREEMENT RELEASING THE UNITED STATES "FROM THE TERMS AND CONDITIONS OF SUCH LEASE AND ANY LIABILITY THEREUNDER," PAYMENT OF RENT BEYOND THE DATE OF ACTUAL OCCUPANCY, THAT IS, FOR THE UNEXPIRED BALANCE OF THE LEASE YEAR, IS UNAUTHORIZED NOTWITHSTANDING THE CONTENTION THAT IT WAS MUTUALLY UNDERSTOOD THAT THE SOLE PURPOSE OF THE RELEASE WAS AS TO THE RESTORATION OF THE PREMISES LIABILITY OF THE GOVERNMENT ONLY, THE RELEASE BEING UNAMBIGUOUS AND, UNDER WELL ESTABLISHED PRINCIPLES OF LAW, NOT BEING SUBJECT TO INTERPRETATION OF CHANGE BY STATEMENTS AND REPRESENTATIONS COLLATERALLY MADE.

COMPTROLLER GENERAL BROWN TO THE SECRETARY OF AGRICULTURE, MAY 3, 1939:

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 3, 1939, REQUESTING FURTHER CONSIDERATION OF THE CLAIM OF GEORGE GAUTHIER, ONTONAGON, MICH., FOR $139.50, COVERING THE UNPAID BALANCE CLAIMED DUE AS RENTAL FOR THE PERIOD JANUARY 1 TO JUNE 30, 1938, UNDER LEASE A9FS-CIV-39 DATED JUNE 7, 1937, FOR A CERTAIN PARCEL OF LAND LOCATED IN ONTONAGON TOWNSHIP, COUNTY OF ONTONAGON, STATE OF MICHIGAN, OCCUPIED AS A "WORK CAMP SITE FOR CIVILIAN CONSERVATION CORPS ACTIVITIES.' THE CLAIM WAS DISALLOWED BY SETTLEMENT OF THIS OFFICE UNDER DATE OF NOVEMBER 29, 1938, FOR THE REASON IN SUBSTANCE THAT THERE WAS NO OBLIGATION ON THE GOVERNMENT TO PAYMENT AFTER DECEMBER 23, 1937.

PARAGRAPH 3 OF THE LEASE PROVIDES FOR A TERM BEGINNING JULY 1, 1937, AND ENDING JUNE 30, 1938, AND PARAGRAPH 9 OF SAID LEASE PROVIDES FOR THE PAYMENT OF "RENT AT THE FOLLOWING RATE: TWO HUNDRED SEVENTY-NINE DOLLARS ($279.00) PER YEAR OR ANY FRACTION THEREOF" AND THAT "PAYMENTS SHALL BE MADE AT THE END OF EACH MONTH, OR AT THE TERMINATION OF THIS AGREEMENT, IN THE EVENT OF ITS PRIOR TERMINATION.' PARAGRAPH 14 OF THE LEASE PROVIDES FOR TERMINATION AT ANY TIME "BY THIRTY (30) DAYS' NOTICE IN WRITING FROM THE REGIONAL FORESTER.'

IN LETTER DATED NOVEMBER 30, 1937, THE REGIONAL FORESTER NOTIFIED THE LESSOR THAT "IN ACCORDANCE WITH PROVISION OF PARAGRAPH 14 OF LEASE * * * NOTICE IS HEREBY GIVEN YOU THAT SAID LEASE IS TERMINATED AS OF JANUARY 4, 1938.' UNDER DATE OF DECEMBER 23, 1937, THE LESSOR EXECUTED A "RELEASE" IN PART AS FOLLOWS:

WHEREAS, THE UNITED STATES HAS TERMINATED THE LEASE HEREIN REFERRED TO AND HAS SURRENDERED THE ABOVE-DESCRIBED PROPERTY TO THIS LESSOR;

NOW, THEREFORE, I, GEORGE GAUTHIER, FOR MYSELF, MY HEIRS, EXECUTORS, ADMINISTRATORS, SUCCESSORS, AND ASSIGNS, HEREBY RELEASE AND FOREVER DISCHARGE THE UNITED STATES OF AMERICA, AND ITS ASSIGNS, FROM THE TERMS AND CONDITIONS OF SUCH LEASE AND ANY LIABILITY THEREUNDER AND ACKNOWLEDGE RESTORATION OF THE PREMISES ABOVE DESCRIBED TO THE SAME CONDITIONS AS THOSE EXISTING AT THE TIME THE UNITED STATES OF AMERICA ENTERED UPON THE SAME UNDER THE LEASE HEREIN REFERRED TO.

RENTAL PAYMENTS TOTALING $139.50 WERE MADE AS PROVIDED FOR UNDER THE LEASE TO AND INCLUDING THE PERIOD ENDING DECEMBER 31, 1937, BUT IN VIEW OF THE RELEASE EXECUTED BY THE LESSOR ON DECEMBER 23, 1937, $6 OF THE AMOUNT PAID TO HIM AS RENTAL FOR DECEMBER 1937 ON VOUCHER 3330, FEBRUARY 1938 ACCOUNTS OF A. J. MAXWELL, WAS DISALLOWED IN THE DISBURSING OFFICER'S ACCOUNTS FOR THE REASON THAT THE GOVERNMENT'S LIABILITY FOR RENTAL PAYMENTS CEASED ON THE DATE THE LESSOR EXECUTED SAID RELEASE.

IT IS NOW CONTENDED THAT IT WAS MUTUALLY UNDERSTOOD BETWEEN THE PARTIES TO THE LEASE THAT THE SOLE PURPOSE OF THE RELEASE WAS TO ACKNOWLEDGE THAT THE GOVERNMENT HAD FULLY COMPLIED WITH THE TERMS AND CONDITIONS OF SAID LEASE REQUIRING SATISFACTORY CLEAN-UP AND RESTORATION OF THE PREMISES TO A STATE COMPARABLE WITH THAT EXISTING PRIOR TO THE GOVERNMENT'S OCCUPANCY, REASONABLE AND ORDINARY WEAR AND TEAR AND DAMAGES BY THE ELEMENTS OR BY CIRCUMSTANCES OVER WHICH THE GOVERNMENT HAS NO CONTROL EXCEPTED, AND TO INSURE IN THIS RESPECT NO COMPLAINT WOULD BE MADE THEREAFTER BY THE LESSOR. IT IS CONTENDED FURTHER THAT IT WAS THE MUTUAL UNDERSTANDING OF THE PARTIES THAT THE CANCELATION OF THE LEASE AND THE RELEASE EXECUTED BY THE LESSOR DID NOT RELIEVE THE GOVERNMENT FROM PAYING $279 FOR THE FRACTIONAL YEAR, AND IT IS STATED THAT THE LESSOR HAS FILED SUIT AGAINST THE FOREST RANGER INDIVIDUALLY FOR RECOVERY OF THE BALANCE CLAIMED DUE UNDER THE LEASE, TO WIT, $139.50.

UNDER THE TERMS OF PARAGRAPH 9 OF THE LEASE THE GOVERNMENT BECAME OBLIGATED TO PAY RENTAL AT THE "RATE" OF $279 PER ANNUM OR ANY FRACTION THEREOF, PAYMENTS TO BE MADE AT THE END OF EACH MONTH OR AT THE TERMINATION OF THE LEASE IN THE EVENT OF TERMINATION PRIOR TO THE EXPIRATION OF THE LEASE TERM. THE GOVERNMENT RELINQUISHED ITS RIGHT TO OCCUPY THE PREMISES ON AND AFTER JANUARY 4, 1938, WHEN THE LESSOR WAS NOTIFIED ON NOVEMBER 30, 1937, THAT THE LEASE WOULD TERMINATE AS OF THE FORMER DATE, AND SUCH RELINQUISHMENT APPEARS TO FURNISH ADEQUATE CONSIDERATION FOR THE RELEASE EXECUTED BY THE LESSOR. IN CONNECTION WITH THE RELEASE IT IS TO BE NOTED THAT WHILE AS CONTENDED BY THE LESSOR THE GOVERNMENT WAS RELIEVED FROM ALL LIABILITY WITH RESPECT TO RESTORATION OF THE PREMISES IT WAS ALSO RELEASED AND DISCHARGED "FROM THE TERMS AND CONDITIONS OF SUCH LEASE AND ANY LIABILITY THEREUNDER.' THE LANGUAGE USED IN THE RELEASE IS CLEAR AND UNAMBIGUOUS AND, BY WELL ESTABLISHED PRINCIPLES OF LAW, THE COLLATERAL STATEMENTS AND REPRESENTATIONS ARE NOT FOR CONSIDERATION AND CANNOT OPERATE TO CHANGE THE WRITTEN RELEASE. SEE IN THIS CONNECTION CALDERON V. ATLAS STEAMSHIP COMPANY, 170 U.S. 272, 280, IN WHICH THE SUPREME COURT OF THE UNITED STATES SAID:

IT IS TRUE THAT IN CASES OF AMBIGUITY IN CONTRACTS, AS WELL AS IN STATUTES, COURTS WILL LEAN TOWARD THE PRESUMED INTENTION OF THE PARTIES OR THE LEGISLATURE, AND WILL SO CONSTRUE SUCH CONTRACT OR STATUTE AS TO EFFECTUATE SUCH INTENTION; BUT WHERE THE LANGUAGE IS CLEAR AND EXPLICIT THERE IS NO CALL FOR CONSTRUCTION, AND THIS PRINCIPLE DOES NOT APPLY. PARTIES ARE PRESUMED TO KNOW THE FORCE AND EFFECT OF THE LANGUAGE IN WHICH THEY HAVE CHOSEN TO EMBODY THEIR CONTRACTS, AND TO REFUSE TO GIVE EFFECT TO SUCH LANGUAGE MIGHT RESULT IN ARTFULLY MISLEADING OTHERS WHO HAD RELIED UPON THE WORDS BEING USED IN THEIR ORDINARY SENSE. IN CONSTRUING CONTRACTS WORDS ARE TO RECEIVE THEIR PLAIN AND LITERAL MEANING EVEN THOUGH THE INTENTION OF THE PARTY DRAWING THE CONTRACT MAY HAVE BEEN DIFFERENT FROM THAT EXPRESSED. * * *

SEE ALSO HENRIETTA MILLS V. COMMISSIONER OF INTERNAL REVENUE, 52 FED./2D) 931, 934; MCDONALD V. COMMISSIONER OF INTERNAL REVENUE, 76 ID. 513, 515.

IN VIEW OF THIS PLAIN TERMS OF THE RELEASE IT MUST BE HELD THAT THE GOVERNMENT'S LIABILITY FOR RENTAL PAYMENTS AS PROVIDED FOR UNDER THE LEASE TERMINATED ON JANUARY 4, 1938, IN ACCORDANCE WITH THE NOTICE OF NOVEMBER 30, 1937, AND THE SETTLEMENT OF NOVEMBER 29, 1938, DISALLOWING THE CLAIM FOR PAYMENT OF RENTAL BEYOND THE DATE OF THE RELEASE, DECEMBER 23, 1937, IS MODIFIED ACCORDINGLY. THE DISALLOWANCE OF THE BALANCE OF THE AMOUNT CLAIMED MUST BE AND IS SUSTAINED.