La Bello v. Victory Pattern Shop, Inc.

• Citation: 351 Mich. 598,88 N.W.2d 288
• Decision Date: 06 March 1958
• Docket Number: No. 62,62
• Parties: Betty Jo LA BELLO, Mike Longo and Sidney J. Piasecki, Plaintiffs and Appellees, v. VICTORY PATTERN SHOP, Inc., a Corporation, Defendant and Appellant.
• Court: Supreme Court of Michigan

Page 288

88 N.W.2d 288

351 Mich. 598

Betty Jo LA BELLO, Mike Longo and Sidney J. Piasecki Plaintiffs and Appellees, v. VICTORY PATTERN SHOP, Inc., a Corporation, Defendant and Appellant.

No. 62.

Supreme Court of Michigan.

March 6, 1958.

Boeschenstein, Lidke & Sanford, Muskegon, for defendant and appellant.

R. Burr Cochran, Muskegon, James J. Kobza, Muskegon, of counsel, for plaintiff and appellee.

Before the Entire Bench.

VOELKER, Justice.

This is an appeal from a decree enjoining the defendant owner from interfering with plaintiffs' possession and enjoyment of certain leased premises for the balance of a decreed extended term of six years. Some years ago defendant's predecessor in title had leased the restaurant quarters and certain adjoining premises presently known as the Spaghetti House in Muskegon to Betty Jo LaBello's assignors for a term commencing May 15, 1952. The lease gave lessees the right to renew for 6 years after the expiration of the first year by giving the lessors 30 days notice in writing. The lease was later changed to provide for increased rental after May 15, 1953. It also required written assent of the lessors to any assignment. No notice to renew was given; there was a dispute over whether Betty Jo's assignors were late with starting to pay their increased rentals; and neither the original lessors nor this defendant consented in writing to the various assignments of the lease. Betty Jo took over the lease and the restaurant on December 20, 1955 and fixed it up extensively and thereafter paid her rentals at the increased rate to the original lessors, who then still owned the place.

Defendant purchased the premises from these original lessors on or before April 2, 1956 and while the plaintiff and ultimate assignee of the lease, Betty Jo LaBello, was in possession running the restaurant. The other two plaintiffs appear to be nominally joined in this action largely because of their respective chattel mortgagees' interest in the restaurant and leasehold. On April 3, 1956 the defendant served a notice to quit on Betty Jo. Thereafter it allegedly began tearing up a vacant portion of said leased premises used by Betty Jo as a parking space for the restaurant by removing trees and digging holes and, as claimed in the bill of complaint later filed, rendering the place generally unfit for parking.

On April 30, 1956 plaintiffs filed their bill for injunction. The same day a temporary injunction issued restraining defendant from interfering with plaintiffs' possession. Defendant filed a motion to dismiss claiming that the lease on which the bill was founded was unenforceable under the statute of frauds because the bill failed to allege written notice of renewal as required by the lease; because there was in fact no such renewal; and also because of failure to obtain written assent to the various assignments of the lease. Plaintiffs thereupon amended their bill alleging equitable estoppel. Defendant's motion to dismiss was denied; its answer was made and filed; on October 8, 1956 after hearing the court entered a decree of injunction in favor of the plaintiffs; and the defendant timely appealed therefrom to this Court.

Thereafter the parties, presumably after negotiation, entered into a stipulation to modify the decree below as follows:

'It Is Hereby Stipulated And Agreed by and between the respective parties through R. Burr Cochran, attorney for plaintiffs and Boeschenstein, Lidke & Sanford, attorneys for defendant, that the decree entered in the above entitled cause, on October 8, 1956, may be modified to permit the Defendant the privilege of using the west thirty-five (35) feet of the rear portion of the premises at 1991 Henry Street, Muskegon, Michigan, for the purpose of receiving and shipping properties in connection with its business, and for no other purpose, and only during the hours of 7 a. m., to 5 p. m., on weekdays, said area at all other times to be kept clear and unobstructed for plaintiffs' own use.

'In consideration of the above modification and privilege granted, defendant, Victory Pattern Shop, Inc., agrees to cause the entire rear unimproved portion of said premises to be adequately graveled for parking purposes, and to be kept level and free from barriers of all kinds, and to maintain lights and keep said area lighted at all times, at defendant's expense and without reimbursement from plaintiffs.

'And in further consideration thereof, defendant agrees that the monthly rental during the balance of said leasehold term shall be reduced from Sixty-five ($65.00) Dollars per month to Fifty-five ($55.00) Dollars per month, commencing October 15, 1956.

'And defendant further acknowledges that all fixtures located in said premises, whether attached to the realty or not, are the property of said plaintiffs, and may be removed from said premises by plaintiffs at the end of said leasehold term.

'Dated this 25th day of October, 1956.'

This stipulation was filed in the cause and the court on October 29, 1956 accordingly modified the decree as follows:

'Upon reading and filing the stipulation of counsel in said cause, approved by the respective parties, consenting to a modification of the decree heretofore entered in said cause, on October 8, 1956,

'It Is Hereby Ordered And Decreed that said decree is hereby modified to permit the Defendant the privilege of using the west thirty-five (35) feet of the rear portion of the premises at 1991 Henry Street, Muskegon, Michigan, for the purpose of receiving and shipping properties in connection with its business, and for no other purpose, and only during the hours of 7 a. m., to 5 p. m., on weekdays, said area at all other times to be kept clear and unobstructed for plaintiffs' own use.

'In all other respects said decree shall stand affirmed.'

Thereafter, evidently smelling a rat, on November 26, 1956 the defendant made a general appeal here from this modified decree. Thereafter on January 8, 1957 this Court denied plaintiffs' motion here to dismiss defendant's appeal from the original decree but at the same time we granted their motion to dismiss the defendant's appeal from the modified decree. Plaintiffs and appellees now urge that the foregoing stipulation together with the modified decree and our dismissal of the defendant's attempted appeal therefrom renders...