form contract, nor is it a contract wholly prepared by one side. Thus, we find this guideline of no use in our analysis.
From the preceding discussion, it is evident that upon application of the basic principles of interpretation, the language in dispute is clear and unambiguous. Upon termination of the lease "for any reason," the entire interest of the lessee vests in the lessor. Here, the lease was terminated by condemnation on October 3, 1979. On that date, the entire leasehold interest of defendant MPI in the premises vested in the lessor. The words "for any reason" are clear and unambiguous and we cannot read them as excluding a termination by a taking of the entire premises through eminent domain. We also find that the phrase "or otherwise" as used by the parties in the definition of "termination" encompasses a termination by condemnation of the entire premises.
Defendant MPI, despite its scholarly effort, is unable to overcome the clear meaning of the language it agreed to and we cannot read the lease any differently than it is written. As this Circuit's Court of Appeals has noted: "The mere fact that in retrospect an agreement does not seem favorable does not give the aggrieved party, a jury, or [the] court the right to reinterpret clear and unambiguous contractual language." E. P. Hinkel and Co., Inc. v. Manhattan Co., supra at 205.
Because we find the language upon interpretation to be clear and unambiguous, we have no reason to adopt any of the numerous rules of construction defendant has urged on us, such as "The law abhors a forfeiture," and "a lease... is to be construed most strongly in favor of the... lessee." They simply do not fit the facts of this case.
It necessarily follows that upon the termination of the lease by condemnation on October 3, 1979, MPI's leasehold interest automatically vested in the lessor with the result that MPI has no remaining compensable interest in the premises. Thus, defendant MPI is entitled to no share of the condemnation award.
2. Interest of defendant Gal-Tex Hotel Corporation
Defendant Gal-Tex Hotel Corporation, owners and operators of the Hotel Washington, claims a share of the condemnation award based on a September 24, 1953 written agreement with defendant MPI, which was to run concurrently with the lease between defendant Trustees and defendant MPI. Pursuant to the agreement, Gal-Tex was granted rights of ingress and egress to the parking garage through an entranceway connecting the hotel's lobby and the interior of the garage. Gal-Tex constructed an entranceway and a connecting hallway through the adjacent walls of the hotel in implementation of the agreement. Gal-Tex argues its compensable interest is in the nature of an easement, acquired by the agreement and also by prescription. Alternately, Gal-Tex argues it has an irrevocable license or a sublease, which are compensable interests.
The agreement on which Gal-Tex relies to establish an express easement or an irrevocable license provides in pertinent part:
This agreement shall be binding upon the parties hereto and their successors in interest so long as the premises of the party of the first part are operated for the parking of automobiles and the premises of the party of the second part are operated as a hotel, but in no event shall the agreement be operative beyond the term of the lease held by the party of the first part or any extension under the terms of the lease . (emphasis supplied.)
It is clear, from the terms of the agreement itself, that once the lease between defendants Trustees and MPI is terminated, the agreement between MPI and Gal-Tex is also terminated. The claim of Gal-Tex is wholly derivative through MPI. Thus, this agreement does not establish any compensable interest, whether an express easement or an irrevocable license, which survives the termination of the lease.
It similarly follows that if Gal-Tex had a sublease with MPI, the sublease was ended with the termination of the lease between defendants Trustees and MPI, leaving no compensable interest.
As for Gal-Tex's argument that it has acquired an easement by prescription, it is a basic tent of property law that acquisition of an easement by prescription cannot spring from a permissive use of the premises. See the cases collected in 25 Am.Jur.2d, Easements and Licenses , § 54 (1966). The agreement of September 24, 1953, clearly establishes such a permissive use which prevents a prescriptive easement from coming into existence.
It is therefore clear that Gal-Tex has no compensable interest which survives a condemnation of the entire premises, and thus, as a matter of law, is not entitled to a share of the condemnation award.
3. Interest of Elenora Shaffer Carson
Defendant Elenora Shaffer Carson, as successor in interest to E. Whyland Shaffer, one of the two agents designated in the lease to receive a monthly commission, also claims a share of the condemnation award. § 3.02 of the lease provides in pertinent part:
The rent, payable under this lease, shall be absolutely net to Lessors without deduction, abatement or setoff, except that Lessee shall not be required to pay any income taxes of Lessors, and Lessors shall pay to E. Whyland Shaffer and Percy H. Keller, agents, their heirs, personal representatives, or assigns, a commission of five percent (5%) on the amount of the monthly rent reserved and paid during the original term of this lease and during the ten (10) year renewal of said term of Lessee exercises the renewal option contained in Article 30. Said commission shall be paid monthly by Lessors if, and at the same time that, the monthly rent is paid . (emphasis supplied).
We believe § 3.02 is dispositive of defendant Carson's claim to a share of the compensation award. The terms of the lease clearly provide that payment of the rent is a condition precedent to payment of the monthly commission. "Where the obligation of the principal to pay commissions depends upon the performance of conditions precedent, the broker takes the risk of non-performance on the part of the customer." Segal Brokerage Co. v. Lloyd L. Hughes, Inc ., 96 F.2d 208, 210 (9th Cir. 1938). Here the lease was terminated by the condemnation and thus the obligation to pay rent was terminated. Without payment of monthly rental there can be no payment of monthly commission. Thus, defendant Carson's interest in the premises is derived solely from the lease. Once the lease is extinguished, so is any compensable interest defendant Carson may have had in the premises.
It follows from the foregoing that only defendant Trustees of the Estate of Henry K. Willard are entitled to the condemnation award.
An order consistent with the foregoing has been entered this day.