Cobb v. Clegg

• Decision Date: 06 December 1904
• Citation: 49 S.E. 80,137 N.C. 153
• Parties: COBB et al. v. CLEGG.
• Court: North Carolina Supreme Court

49 S.E. 80

137 N.C. 153

COBB et al. v. CLEGG.

Supreme Court of North Carolina

December 6, 1904

Appeal from Superior Court, Guilford County; Bryan, Judge.

Suit by Marion Cobb and another against W. F. Clegg. From a decree continuing a temporary injunction to the hearing, defendant appeals. Affirmed.

Where a suit was brought for a special injunction, as the main relief demanded, to restrain defendant from operating a cafe in a room in a hotel in violation of an alleged parol covenant in a lease of such room, and defendant answered, simply disavowing any information as to the facts alleged, and not by denial of each material allegation of the complaint, as required by the Code, it was not error for the court to refuse to dissolve a temporary injunction and to continue the same to the hearing.

The plaintiffs brought this action to obtain an injunction restraining the defendant from using a room in the Hotel Guilford which is situated in the city of Greensboro, as a café restaurant, or eating place, contrary to the covenant contained in the lease of the said room to the defendant's assignor. They allege that on or about the 11th day of April, 1904, they leased the room verbally to one Sam Chouris for one year, to be used by him as a fruit candy, and ice-cream kitchen, and for no other purpose, and that it was specially agreed at the time that the plaintiffs did not lease it for the purpose of being used as a café or restaurant, because of the offensive odors caused by such use, which were disagreeable to the guests of the hotel--it having once been used for that purpose, and found to be objectionable, and the plaintiffs afterwards, and before the lease to Sam Chouris, having refused to lease it for use as a restaurant or café, though a much larger rent was offered than that proposed to be paid by Chouris. It is further alleged that Chouris agreed to accept the lease upon the terms and conditions just stated, and expressly covenanted that he would not use the room as a restaurant or café, but as a fruit, ice-cream, and candy kitchen, which should be so conducted as not to emit therefrom any offensive odors and thereby render it objectionable to the hotel guests; that subsequently, on the 16th day of April, 1904, Chouris requested the plaintiff to give him a written memorandum of the lease, stating merely its duration and the amount of rent to be paid, and giving as his reason for wanting this memorandum that there had been frequent changes in the management of the hotel, and that he would need it for his protection; that plaintiffs, for his accommodation, complied with the request; the plaintiff Cobb dictating a letter for Chouris, which was afterwards written and signed by the plaintiffs, and accepted by Chouris in writing over his signature. The letter described the premises leased with some particularity, and also certain changes to be made by Chouris at his own expense in the arrangement of the room and the adjoining hall, but did not contain any reference to the alleged stipulation that it should not be used as a restaurant or café. It is then charged that the defendant who is a business rival of the plaintiffs, well knowing or having the means of knowledge that said agreement had been made, and refusing to investigate the matter, in July, 1904, bought the lease from Sam Chouris, who had leased the room only for a candy kitchen, or from his brother John Chouris, to whom a pretended sale had been made, and announced his purpose to establish a restaurant and café at the place, whereupon the plaintiffs immediately notified him of said covenant of Sam Chouris not to use it for such a purpose, and insisted that the assignment to him was void, and that any use of the room as an eating place was clearly prohibited by the original lease, and he was forbidden to devote it to any such purpose, but that defendant, notwithstanding the notice and protest from plaintiffs, began at once to make the necessary changes in the room to adapt it to said use as a restaurant, furnished and equipped it for that purpose, and has since conducted a restaurant in it, to the great annoyance and irreparable damage of the plaintiffs. It is alleged in the second, third, and fourth sections of the complaint that the agreement not to use the room as a restaurant, while contemporaneous with the making of the lease, was wholly independent of and collateral thereto, and that even if, in any sense, an integral part of the contract, it was not intended to be inserted in the written memorandum or to be reduced to writing at all, but to remain in parol, and in that way to be a binding covenant or stipulation between the parties to the lease. Each of those sections of the complaint is denied by the defendant as follows: "The defendant has not sufficient information to form a belief as to the allegations contained in [said] paragraph of the complaint, and therefore denies the same to be true." There were other allegations made in the complaint and denied in the answer, but it is not necessary, in the view of the case taken by the court, to set them forth. The defendant averred in his answer that he bought the lease from John Chouris, assignee of Sam Chouris, for full value, and without any notice of the alleged covenant, and that he has conducted a restaurant at the place in an orderly and cleanly manner, and without any annoyance to the plaintiffs' guests. Affidavits were filed by the respective parties in support of their allegations, but we need do no more than state that a careful examination tends to show that, as the case now stands, the proof preponderates decidedly in favor of plaintiffs' contention that there was a covenant between Chouris and themselves to the effect stated above. Upon the complaint filed, Judge Shaw granted an order to the defendant to show cause why an injunction should not issue as prayed for, and in the meantime restrained the defendant from conducting a restaurant in the room contrary to the alleged covenant, and at the hearing of the motion for an injunction before Judge Bryan, upon the return of the order to show cause, his honor continued the injunction to the hearing, whereupon the defendant, having duly excepted, appealed to this court.

W. P. Bynum, Jr., Scales, Taylor & Scales, and G. S. Ferguson, Jr., for appellant.

Fuller & Fuller and King & Kimball, for appellees.

WALKER J. (after stating the case).

The plaintiffs contend that the contract of lease was not one required to be in writing, and that, as the entire agreement was not reduced to writing, and not intended to be, but a distinct and independent part of it remained in parol, the plaintiffs are not forbidden to show the existence of the unwritten stipulation by oral evidence. They admit that, when parties reduce their agreement to writing, it is a rule of evidence that parol testimony is not admissible to contradict, add to, or vary it, for, although there may be no law requiring the particular agreement to be in writing, yet the written memorial is regarded as the surest evidence. But they insist that this case is not within either the letter or the spirit of the rule, as the writing is not a memorial of the whole agreement, which was severable into parts, one of the parts only having been committed to writing, and the other stipulations and terms of the agreement having been left open to parol proof, and that in such a case the rule is that the stipulations may be proved orally, unless the contract is one required to be in writing. They have cited numerous authorities to sustain their contention, and among them the following: Twidy v. Saunderson, 31 N.C. 5; Manning v. Jones, 44 N.C. 368; Johnson v. McRary, 50 N.C. 369; Kerchner v. McRae, 80 N.C. 219. Counsel also insisted that the rule they rely on applies even when the contract is an entire one, for which position they cited Braswell v. Pope, 82 N.C. 57; Ray v. Blackwell, 94 N.C. 13; and Terry v. Railroad, 91 N.C. 236, in the last of which cases the court cites Hawkins v. Lee, 8 Lea (Tenn.) 42, for the following proposition, which is therein stated: "When it is not intended that a written contract should state the whole agreement between the parties thereto, evidence of an independent verbal agreement is admissible." In the last edition of Clark on Contracts, which was recently published, the principle is thus stated: ""Where a contract does not fall within the statute, the parties may at their option put their agreement in writing, or may contract orally, or put some of the terms in writing and arrange others orally. In the latter case, although that which is written cannot be varied by parol evidence, yet the terms arranged orally may be proved by parol, in which case they supplement the...