Belvin v. Sikes
| Decision Date | 04 April 1941 |
| Docket Number | 6247. |
| Citation | 2 So.2d 65 |
| Court | Court of Appeal of Louisiana — District of US |
| Parties | BELVIN v. SIKES ET AL. |
A S. Drew, of Minden, for appellants.
Edwin F. Hunter, Jr., of Shreveport, and Campbell & Campbell of Minden, for appellee.
The defendants, J. S., James A. and Jesse J. Sikes, by written contract, leased to the plaintiff, John F. Belvin, a tract of land fronting on Sikes Lake in Section Two (2), Township Twenty-Two (22) North, Range Ten (10) West in Webster Parish for a period of ten years, dating from September 10, 1938, at the rental price of One Hundred ($100) Dollars per year. One-half of the rent was payable on March 1st and one-half on September 1st of each year. The lease agreement contains several special stipulations. The following stipulation therein forms the primary basis of the present suit, to-wit "Parties of the first part agree and bind themselves to protect the party of the second part against any competition in mercantile, cafe, of service station business, fishing camps, and rental cabins, on any lands now owned by them during the life of this lease."
J. S. Sikes was designated by his colessors as the person to receive rent payments.
In April, 1939, one of the defendants, Joe Sikes, established a fishing camp on land owned jointly by himself and the other defendants on said lake, approximately three hundred (300) yards from the camp plaintiff had established on the leased land, and in connection therewith launched and maintained several small boats for rent to persons desiring to angle. He advertised for business through signs posted near the situs and allowed other persons to moor their boats at his camp site and to use them at will for fishing. This action was in direct violation of the above quoted stipulation in the lease.
On August 24, 1939, plaintiff instituted the present suit against all three lessors, charging them with having breached the covenants of the lease agreement to his financial injury and prayed for judgment for damages to the extent of Two Hundred ($200) Dollars. He alleged that the contract of lease was in full force and effect through compliance on his part with all of the terms and conditions thereof. By supplemental petition, plaintiff prayed for the issuance of a writ of injunction, after trial of the case, restraining and prohibiting defendants from continuing the breach of the contract in the respects mentioned.
Defendants denied the essential allegations of the petition and amended petition, except the execution of the lease agreement which they admitted; but further alleged that the lease was no longer in force and effect for nonpayment of the Fifty ($50) Dollars rent installment due on September 1, 1939. They prayed that plaintiff's demand be rejected and that the contract of lease be decreed null and void.
After joinder of issue, plaintiff presented a motion to the court in which he briefly set up the issues in the case, supplemented by allegations that under the terms of the lease there would be due on March 1, 1940, a rent payment of Fifty ($50) Dollars, covering the period from March 1, 1940, to September 1, 1940, in the event the contract was held to be valid; that to protect his rights under the lease contract he desired to deposit with the Clerk of Court said Fifty ($50) Dollars "for the use and benefit of defendants, and that upon making said deposit he be relieved from the obligation to make further tender or offer to the defendants". The court issued an order as prayed for and the money was accordingly deposited.
There was judgment below for plaintiff decreeing the lease agreement to be in full force and effect and defendants were enjoined: "* * * from engaging in the business of renting boats, selling bait, giving free picnic grounds, renting cabins, operating mercantile businesses or cafes on any lands owned by defendants or permitting any other person as their agent or licensee so to do."
The Fifty ($50) Dollars deposited were ordered paid over to the defendants. The demand for damages was rejected. Defendants prosecute appeal from this judgment.
Plaintiff has not answered the appeal, therefore, the judgment may not be revised or altered in any respect wherein favorable to defendants.
Plaintiff and his wife, after appeal was lodged here, were killed by one of the defendants. They both died intestate. They left as their sole heirs and legal representatives three children, to-wit: Gladys Belvin Carr, Kate B. Belvin Campbell and Jennie Lou Belvin Nesbit, all of whom accepted the successions of their parents unconditionally. They were recognized as such heirs and legal representatives and sent into possession of all of the property of decedents by the District Court of Webster Parish, Louisiana. On their petition therefor, they were substituted as parties plaintiff and appellees in this court.
Defendants have moved to remand the case to the lower court for the reason, as alleged, that the only issue presented, to-wit: the right to injunctive relief, is now moot because the contract of lease has lapsed, and is now of no effect, on account of nonpayment of rent due thereunder on September 1, 1940, and March 1, 1941. The motion is supported by affidavits of the Clerk of Court and defendants' attorney. The prayer of the motion is that the case "be remanded to the lower court for trial of this motion and to determine if the lease in question is still in force and effect at the present time; and that no action be taken thereon in this court until such a termination is had in the lower court." Appellees oppose the granting of the motion.
As no answer to the appeal has been filed, the correctness of the rejection of the demand in damages is not before us. Whether the lease was in effect when the case...
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Walgreen Co. v. Sara Creek Property Co., B.V.
...Bank, 27 Ill.App.3d 798, 800, 327 N.E.2d 378, 379 (1975); Regis Corp. v. Fusco Corp., 496 So.2d 833, 835 (Fla.App.1986); Belvin v. Sikes, 2 So.2d 65 (La.App.1941); Child World, Inc. v. South Towne Centre, Ltd., 634 F.Supp. 1121, 1134-35 (S.D.Ohio 1986). The choice between remedies requires ......
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Leonard v. Lavigne
... ... In urging our reversal of the judgment rendered below, learned counsel for appellant relies heavily upon Belvin v. Sikes, La.App., 2 So.2d 65, which involved an action by a lessee against his lessors for breach of a covenant binding lessors to protect lessee ... ...
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Good v. Saia
...October 1, 1939, although he had paid only through August 31, 1939. The lessor refused a tender made on October 2, 1939. Belvin v. Sikes, 2 So.2d 65 (La.App. 2 Cir.1941). The lessee's failure timely to remit his rent was caused not by his fault but because of a malfunction of the bank's tra......
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Leonard v. Lavigne
... ... Sikes, 2 So.2d 65, is clearly without application here, for, as pointed out by the trial judge in his reasons for judgment, the case concerned 'a violation ... ...