Camichos v. Diana Stores Corp.

• Decision Date: 30 April 1946
• Citation: 157 Fla. 349,25 So.2d 864
• Parties: CAMICHOS et ux. v. DIANA STORES CORPORATION et al.
• Court: Florida Supreme Court

25 So.2d 864

157 Fla. 349

CAMICHOS et ux. v. DIANA STORES CORPORATION et al.

Florida Supreme Court

April 30, 1946

Appeal from Circuit Court, Orange County; Frank A Smith, judge.

G. P Garrett and Ed K. Goethe, both of Orlando, for appellants.

J. Thos Gurney, of Orlando, for Diana Stores Corporation.

H. M Voorhis, W. H. Poe, and Maguire, Voorhis & Wells, all of Orlando, for Florida Orlando Stores Corporation.

John G. Baker and Baker & Thornal, all of Orlando, for executrices and trustees under will of Charles Rock, Sr., and heirs of said Charles Rock, appellees.

BUFORD, Justice.

On the 27th day of May, 1942, the executrices of the estate of Charles Rock Sr., of Orlando, Florida, executed a certain lease on store buildings in Orlando, Florida, to John Camichos and his wife, Geneva Camichos, for a term of four years from the 1st day of May, 1942, until and inclusive of the 30th day of April, 1946. Paragraph 12 of the lease provided as follows:

'12. It is agreed by and between the parties hereto that the Lessee shall have the refusal of the property for an additional term at a rental and term to be agreed upon between the parties.'

The Lessees went into possession of the premises and continued therein until the present time. On April 2, 1945, the executrices and trustees repectively under the last will and testament of Charles Rock, Sr., deceased, leased the premises to Diana Stores Corporation, a New York corporation, authorized to do business in the State of Florida, for a term of fifty (50) years to begin April 1, 1945, and ending on the 31st day of March, 1995. That lease contained the following provision:

'52. It is expressly understood, anything hereinbefore or hereinafter contained that might be to the contrary notwithstanding, that this lease is made and delivered by the Lessors and accepted by the Lessee subject only to the leases in force upon said premises as hereinafter listed, and for the terms indicated, all of which have been scheduled and rents adjusted as of the effective date of this lease, to-wit, * * *

'John Camichos and Geneva Camichos, his wife, lease, beginning May 1, 1942, and ending May 1, 1946, at $450.00 per month until May 1, 1945, and thereafter at the rate of $500.00 per month until and of inclusive of April 30, 1946.'

'Assignment of Existing Leases:

'53. And the Lessors herein do hereby assign, set-over, transfer and convey to the Lessee herein, all the Lessor's right, title and interest in the said leases set out in the foregoing paragraph, and in and to any rents that may accrue therefrom, subject, however, to all the covenants, provisions and conditions of any and every nature of this lease. And the Lessee herein assumes on its part all the covenants and obligations of the Lessors in or under said leases described in the foregoing paragraph which have been disclosed to the Lessee.'

Thereafter, on June 26, 1945, Diana Stores Corporation assigned its said lease to Florida Orlando Stores Corporation. The original lease to John Camichos and his wife, Geneva Camichos, was also assigned to Diana Stores Corporation and from Diana Stores Corporation to Florida Orlando Stores Corporation. In the assignment of the lease the following language was used:

'The Assignee hereby assumes all of the covenants, conditions and provisions in said indenture of lease contained and agreed that it, and its successors shall be bound for the due performance herein in the same manner as if it, the assignee, had been the original Lessee named in said indenture, and agrees to pay the rents and other payments in said indenture and lease reserved and provided for.'

On July 31, 1945, John Camichos and his wife, Geneva Camichos, addressed the following notice to interested parties, to-wit:

'To

'Olga Field, individually and as Executrix and Trustee under the Last Will and Testament of Charles Rock, Sr., deceased;

'Bertha Burke, individually and as Executrix and Trustee under the Last Will and Testament of Charles Rock, Sr., deceased;

'Ernest J. Burke;

'Charles Rock, Jr., Lucile Rock, his wife;

'Henrietta Scott; Turner Scott, her husband;

'Frances Egan;

'Jerry Ross Edinger, also known as Jerry Ross:

'Diana Stores Corporation;

'Florida Orlando Stores Corporation.

'This is to notify you that pursuant to paragraph 12 of that certain lease dated the 27th day of May, A. D. 1942, between Bertha Burke and Olga Field, as Executrices of the Estate of Charles Rock, Sr. of Orlando, Florida, Lessors, and John Camichos and Geneva Camichos his wife, Lessees, demising for a term of four (4) years from May 1 1942, the premises in the City of Orlando, Orange County, and State of Florida, known and described as follows:

'That certain store rooms located at Numbers 13 and 17 North Orange Avenue, Orlando, Florida, more particularly described as the storerooms formerly occupied by Langston's Restaurant consisting of two dining rooms, kitchen, pantries, rest rooms, office and basement, all being on the Ground Floor of the Rock Building.

the undersigned lessees do hereby elect to extend and renew said lease for an additional term of four (4) years from the expiration thereof, at a rental to be agreed upon as in said lease provided.

'We hereby request that you prepare a renewal lease for the aforesaid additional term in accordance with said paragraph 12 and forward it to us for execution.

'Dated at Orlando, Florida, this 31st day of July A. D. 1945.'

On August 23, 1945, Florida Orlando Stores Corporation replied to the notice given, supra, as follows:

'Mr. John Camichos,

'Mrs. Geneva Camichos

'Orlando, Florida

'Dear Sir and Madam:

'We have received your so-called 'election to renew lease,' dated July 31st, 1945.

'It is our present intention to demolish the existing building on June 1, 1946, and we cannot, therefore, entertain your request for a period greater than one month at a rental of one thousand ($1,000) dollars for that period.

'If, for any reason, demolition, is postponed, you will be advised and if you wish to do so, you may remain as a monthly tenant at the rental of one thousand ($1,000) dollars per month.'

On December 3, 1945, John Camichos and Geneva Camichos, his wife, filed their amended bill of complaint against 'Diana Stores Corporation, a corporation, Florida Orlando Stores Corporation, a corporation; Olga Fields and Bertha Burke, as Executrices and Trustees under the Last Will and Testament of Charles Rock, Sr., deceased, and Olga Fields individually and Bertha Burke, individually, and Ernest J.

Burke, her husband; Charles Rock, Jr. and Lucile Rock, his wife; Henrietta Scott and Turner Scott, her husband; Frances Egan, unmarried and Jerry Eddinger, also known as Jerry Ross, defendants, and for amended bill, allege that: * * *' seeking to have paragraph 12 of the original lease reformed or construed as to Section 12 thereof so as to provide that 'the plaintiffs at the conclusion of this original term would be entitled to a renewal of said lease at a rental as high and on terms as satisfactory to Lessor as any bona fide offer lessor might, at the conclusion of the original four year term, receive from any responsible person then desiring to rent same.'

As a basis for this relief the amended bill of complaint averred in paragraph 5 of the bill inter alia as follows:

'Thereupon plaintiffs and Langston approached the agent of the Rock Estate and discussed with him the terms and conditions of a lease. Plaintiffs explained to said Agent that the price to be paid Langston for his restaurant business, including fixtures, was $12,000 and that, in order for plaintiffs satisfactorily to continue said restaurant business to be purchased from H. C. Langston, it would be necessary for plaintiffs to spend several thousand dollars additional to the sum paid H. C. Langston to purchase equipment and install improvements peculiarly adapted to be used in the conduct of said restaurant business at said particular location. Plaintiffs also then and there explained to said Agent that before they invested said $12,000 in purchase of said restaurant business and became obligated to spend said additional thousands of dollars in equipment and improvements, it was necessary that they be assured that at the conclusion of the four year term of the lease suggested by the Rock Estate, they could renew said lease for a like further term. Thereupon said agent assured them that they could renew said lease at a rental as high and on terms as satisfactory to the lessor, as any bona fide offer the Rock Estate might at the conclusion of said four year term have or receive from any responsible party then desiring to lease said premises. Plaintiffs agreed to accept a lease containing such a provision. Thereupon said agent for the Rock Estate caused the lease referred to in paragraph 3 above to be prepared by the attorney for the Rock Estate and signed by the Executrices of said Estate, for and on behalf of said estate, and presented it to plaintiffs for execution by them then and there representing to plaintiffs that clause 12 thereof embodied the aforesaid oral agreement for renewal of said lease. Therepon, relying upon said representation, and believing that said paragraph 12 of said lease did embody the oral agreement of the parties for a renewal as aforesaid, plaintiffs executed said lease referred to in paragraph 3 hereof. Thereafter, so relying, said plaintiffs spent in excess of $17,000 in the acquisition of said business from H. C. Langston and in the subsequent purchase of restaurant furniture, furnishings and equipment, so peculiarly adapted to the conduct of said restaurant at said location and not elsewhere that the salvage value of all the furniture, furnishings and...