Dick v. Sears-Roebuck & Co.

• Decision Date: 17 May 1932
• Citation: 160 A. 432,115 Conn. 122
• Parties: DICK v. SEARS-ROEBUCK & CO.
• Court: Connecticut Supreme Court

160 A. 432

115 Conn. 122

DICK v. SEARS-ROEBUCK & CO.

Supreme Court of Errors of Connecticut.

May 17, 1932

Appeal from Superior Court, Fairfield County; Alfred E. Baldwin Judge.

Action by Henry Dick against Sears-Roebuck & Company for an injunction restraining defendant from engaging in the furniture business on premises occupied by defendant. Judgment for plaintiff on trial to the court, and defendant appeals.

No error.

Israel J. Cohn, of Bridgeport, for appellant.

Joseph Schwarz, of Bridgeport, and William Hanna, of Danbury, for appellee.

MALTBIE, C.J.

The plaintiff owned certain premises in Danbury upon which was a building built especially for and peculiarly adapted to the conduct of a retail furniture business. For several years subsequent to 1900 he conducted such a business in the building as an individual, but thereafter it was conducted by a partnership which consisted of himself, his wife, and his son, but in which he held the greatest interest. While it was so being conducted he conveyed a lot of land across the street to certain grantees by a deed in which was inserted the following covenant: " The grantees herein by the acceptance hereof covenant and agree on behalf of themselves their heirs and assigns, that they will not rent the premises hereby conveyed for the purpose of conducting thereon a retail or wholesale furniture business and that they will not permit the said premises to be so used for a period of fifteen years from and after the date hereof and said covenants and agreements are hereby declared to be made the joint and several covenants and agreements of the grantees."

Thereafter the business was incorporated, but the plaintiff continued to manage it and to have the largest financial interest in it. The grantees of the lot across the street conveyed it to a corporation and in the deed to it a covenant similar to that quoted was inserted. The corporation constructed a building upon the lot and leased it for a period of ten years from May 1, 1929, to the defendant, to be used for the sale and storage of merchandise. The lease contained no reference to the covenants in the deeds. The defendant conducts on the premises a general retail department store and since April, 1931, has had in it a department for the sale at retail of articles of household furniture of all descriptions. It has conspicuously advertised the department and has sold furniture in it to a substantial amount. This has been done in direct competition with the business conducted by the plaintiff, to the substantial injury of that business and the plaintiff's property. The complaint sought and the trial court granted an injunction restraining the defendant from engaging in the retail or wholesale furniture business upon the premises occupied by it.

There can be no question that when the plaintiff conveyed the premises on which is the defendant's store both he and his grantees intended that the covenant should be binding not only upon them but upon subsequent grantees of the property. This is indicated by the use of terms in the covenant which bound not only the grantees but also their heirs and assigns as far as the plaintiff was concerned, its obvious purpose was to protect the furniture business he was conducting across the street from competition, a purpose which would be easily defeated if the grantees might at any time convey the land free of the restriction; and as far as the grantees are concerned, their intent that the covenant should be binding upon their successors in title is shown by the insertion of an identical covenant in the deed by which they conveyed the premises. The language of the covenant and the surrounding circumstances mark it as one the burden of which was intended to run...