Davis v. Wickline
Decision Date | 27 April 1964 |
Docket Number | No. 5728,5728 |
Citation | 205 Va. 166,135 S.E.2d 812 |
Court | Virginia Supreme Court |
Parties | DAVID W. DAVIS, ET AL. v. JAMES A. WICKLINE. Record |
John D. Epperly (M. H. MacBryde, Jr.; Broaddus, Epperly & Broaddus, on brief), for the appellants.
Jackson L. Kiser (Young, Kiser & Frith, on brief), for the appellee.
Wickline filed a petition for declaratory judgment under § 8-578 of the Code of Virginia against Davis and others, lessors of a building which was to be erected for and used by Wickline as a drug store. The suit prayed for the construction of paragraph 'Fourth' in the lease.
The point in issue between the parties was that Davis contended that paragraph 'Fourth' of the lease 'Contains a positive covenant (on the part of Wickline) to operate a drug store '. Whereas, Wickline contended that the paragraph was a restrictive covenant only, restricting the use of the building to that of a drug store. This was the sole issue in the case. The paragraph reads:
'Fourth: It is covenanted and agreed between the contracting parties that during the term of this lease the premises hereby leased shall be used for the purpose of a drug store and for no other purpose -- and that during the term of this lease or any renewal thereof the lessee shall operate said premises as a drug store'.
It was conceded by the parties that the language in the lease was plain and that there was no necessity for oral testimony to explain its meaning.
In deciding the case in Wickline's favor the trial court said:
After operating the drug store in the demised premises for a period of time Wickline moved his operation to a new location but continued to pay the monthly rental as agreed.
In Parrish v. Robertson, 195 Va. 794, 800, 80 S.E.2d 407, 410 the lessor entered into a written lease with the lessee whereby a building which was being constructed was leased to the lessee for a period of three years for the purpose of operating a restaurant therein. Lessee was to pay a rental of $250 per month plus 10% of the net profits derived from the operation of the business. Lessee operated a restaurant on the premises for eighteen months and then ceased operation and moved to another location. It was contended by the lessor that the lessee was required to operate a restaurant business for the full term of the lease and that the obligation was both express and implied by the covenant to pay in addition to the monthly rent 10% of the net profits.
In rejecting this contention we said:
What was said in the Parrish case applies with equal force to the case at bar. It can hardly be contended that Wickline intended to agree to continue to operate a drug store in this new, untried location for a period of ten years if the business was losing money. The factual posture of the case at bar is stronger for the construction adopted by the trial court than existed in Parrish, for in the instant case the rent is not tied into the profits made in the business.
In the case of Congressional Amusement Corp. v. Weltman (D.C. Mun. App. 1947) 55 A.2d 95, the lessor sued for possession of the demised premises charging that the lessee had breached the lease by discontinuing the operation of a liquor store on the premises. A covenant in the lease provided in part: 'That (lessee) will use said premises for the sale of alcoholic beverages * * * '. In holding that the covenant was restrictive only and did not impose an affirmative duty to operate a liquor store the court said:
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