Bowling v. Bluefield-graham Pair Ass'n (tri-state Pair Ass'n
| Decision Date | 22 April 1919 |
| Docket Number | (No. 3756.) |
| Citation | 99 S.E. 184 |
| Court | West Virginia Supreme Court |
| Parties | BOWLING v. BLUEFIELD-GRAHAM PAIR ASS'N (Tri-State Pair Ass'n, Garnishee). |
(Syllabus by the Court.)
Error to Circuit Court, Mercer County.
Action by Lowery G. Bowling against the Bluefield-Graham Fair Association and the Tri-State Fair Association, garnishee. Judgment adverse to garnishee was rendered, and it brings error. Reversed, and garnishment proceedings dismissed.
Sanders, Crockett & Kee, of Bluefield, for plaintiff in error.
James S. Kahle, of Bluefield, for defendant in error.
MILLER, P. The Tri-State Fair Association, summoned as garnishee, seeks reversal of the judgment below against it, by which it was denied the right to set off or recoup in damages against the balance of rent found due from it as lessee, to the Bluefleld-Graham Fair Association, its lessor, the judgment debtor, the cost of the permanent improvements placed by it upon the leased premises in accordance with the terms of the lease.
On the trial of the issue the court found that after allowing the respondent credit for $210.00 paid to the Bank of Graham for interest on bonds secured by a deed of trust on the property, and $125.00 shown to have gone into the construction of a building erected on the fair grounds, there remained due to the judgment debtor on account of the rent accrued under the lease for the second year the sum of $1,160.00, and the judgment thereon was that plaintiff recover of the Tri-State Fair Association, garnishee, the sum of $637.00, the amount of his judgment against the Bluefleld-Graham Fair Association, principal debtor, with legal interest thereon from June 8, 1918, the date of the judgment against it as garnishee, and the costs of the suit against said lessor, amounting to $90.65, the amount of the judgment against it to be credited upon the amount found due on the rent aforesaid. The cost of the improvements which the lessee sought to set off against the claim of its lessor was the sum of $2,113.84.
The lease under which said rental accruedwas dated April 1, 1916, covered the fair grounds of said lessor, and was for the term of five years from January 1, 1916, and provided that the rent of $1,500.00 reserved should be paid on the first day of September of each year, which it was agreed should be used to pay the interest annually on $25,000.00 of the first mortgage bonds of the lessor. And among a number of other covenants and agreements therein, was the covenant in substance and effect that the lessee with the consent of the lessor might make improvements on the grounds and buildings or erect new buildings but that all improvements should be paid for out of the gross receipts from the business, after the appropriation of said rental of $1,500.00 to the payment of the interest on the bonds, before the division of profits between the parties as stipulated in the lease. And another provision thereof, contained in the eleventh paragraph, and bearing on the rights of the parties to this controversy, was that if the lessor should violate any of the provisions of the lease so as to cause a premature termination thereof, it should be rendered liable to the lessee for the damages sustained thereby; and there was a similar provision in favor of the lessor against the lessee for damages for any breach of the covenants on its part.
The objects and purposes of the lease, as proven and plainly evidenced by provisions of the instrument, were that the lessee should have the right to conduct a county fair and exhibitions and amusements of different kinds for which the premises were adapted, the net profits after payment of the annual rental to be divided in the proportions of 50 per cent, to the lessor, the residue to the lessee.
The answer of the garnishee and the proof was that on December 1, 1917, the whole of the leased premises, situated partly in Virginia and partly in West Virginia, were allowed to be sold away from the lessor and lessee at public auction under judicial proceedings against said lessor and purchased by a third party, thereby terminating the lease in breach of the covenants of the lessor and depriving the lessee of its rights under the lease. The evidence shows, as was anticipated, that the expense of operating the property, including the rental for the first year, amounted to several thousand dollars more than the gross receipts, and that for the second year, but decreasing in amount, they also exceeded the income from the business. The belief and expectation of the parties were that the business would develop and increase with the life of the lease, so that in the subsequent years there would be a profit to both parties in the operation of the property, and the result of the business for the second year seemed to justify these anticipations. There seems to have been no controversy as to the actual amount expended on the property by the lessee, and little if any evidence that the same was done without the approval of the lessor as provided in the contract.
It is conceded on both sides that but two questions are presented for decision: First, whether the garnishee has a valid claim against the judgment...
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