Cong.ional Amusement Corp.. v. Weltman

• Decision Date: 08 October 1947
• Docket Number: No. 545.,545.
• Citation: 55 A.2d 95
• Parties: CONGRESSIONAL AMUSEMENT CORPORATION v. WELTMAN et al.
• Court: D.C. Court of Appeals

55 A.2d 95

CONGRESSIONAL AMUSEMENT CORPORATION

v.WELTMAN et al.

No. 545.

Municipal Court of Appeals for the District of Columbia.

Oct. 8, 1947.

Appeal from the Municipal Court for the District of Columbia, Civil Division.

Action by Congressional Amusement Corporation against David J. Weltman and another, for possession of leased premises on ground that lessees had violated their lease by discontinuing the operation of a liquor store on the premises. From a judgment for defendants, the plaintiff appeals.

Affirmed.

Milton Strasburger, of Washington, D. C., for appellant.

David L. Blanken, of Washington, D. C. (F. Joseph Donohue, Jos. A. Kaufmann, and Milton S. Kronheim, Jr., all of Washington, D. C., on the brief), for appellees.

Before CAYTON, Chief Judge, and HOOD and CLAGETT, Associate Judges.

CAYTON, Chief Judge.

Appellant sued for possession of store property, charging that the lessees had violated their lease by discontinuing the operation of a liquor store in the premises. The lease was for three years ending November 30, 1947. This is the covenant allegedly violated:

‘That he will use said premises for the sale of alcoholic beverages and other items usually associated with the sale of liquor for ‘Off Sale’ consumption and for no other purpose whatsoever.'

Defendants filed an answer denying that they had violated the covenant and stating that the covenant was intended only to prevent them from using the premises for and purpose except that of a liquor store, and was not intended to require them to operate such a store. The answer further stated that the language of the covenant was ambiguous but that said ambiguity had been fully settled between the parties verbally before the tenancy commenced, it being definitely agreed that the lease ‘was intended in the restrictive and not in the mandatory sense.’ Defendants also declared their willingness to pay the rent and made tender thereof.

Appellant moved for summary judgment, supporting its motion by an affidavit in which it was alleged that the covenant was unambiguous and that there had been no verbal agreement concerning it. The affidavit also recited that the lessees had removed their liquor license to another store and had discontinued the use of the premises for any purpose and had vacated and abandoned the store; that the store was in a parking center and closing it was ‘a great detriment to the business of the parking center and constitutes waste.’

The trial court overruled the motion for summary judgment and plaintiff thereupon filed a formal election to stand on the motion and moved the court to enter a final judgment so that an appeal might be taken to this court. Judgment for defendants followed.

The issue on this appeal is whether the covenant above quoted clearly and unambiguously required a continued operation of a liquor store on the premises by the lessees. We rule, as did the trial court, that it did not. It either unambiguously provided to the contrary, or at the very least, was so ambiguous that the lessees were entitled to introduce parol evidence to show the verbal agreement of the parties as to its meaning. Appellant, however, by standing on its motion for summary judgment after it had been overruled by the trial court, prevented the effort of appellees to show such oral agreement.

Reason and authority support the view that though the covenant unambiguously restricted the use of the premises to a liquor store, it did not require that it be used at all. When the parties sat down to draw the lease they had it in their power to make the use restrictions as mild or as strict as they desired (or could agree upon). If the lessor wished to impose upon the lessees the duty of continuing occupancy and continuing operation of a liquor store it should have adopted language to make that duty clear. The language the...