Farmers' Bank & Trust Co. v. Palms Pub. Co.
| Decision Date | 05 November 1923 |
| Citation | 86 Fla. 371,98 So. 143 |
| Court | Florida Supreme Court |
| Parties | FARMERS' BANK & TRUST CO. v. PALMS PUB. CO. et al. |
Suit by the Palms Publishing Company, a corporation, and another against the Farmers' Bank & Trust Company, a corporation for an injunction. From a temporary restraining order defendant appeals.
Affirmed.
Syllabus by the Court
Acceptance by lessor of benefits of lease after forbidden assignment or subletting held a waiver of forfeiture. A lessor, by accepting the benefits of a lease, after an assignment or subletting by the original lessee, and by a course of conduct reasonably susceptible of a construction that he acquiesces in the assignment or subletting of the leased premises notwithstanding a covenant against an assignment or subletting, may be held to have waived the covenant and to be estopped from asserting a forfeiture because of its breach.
Permitting assignee to remain in possession after assignment forbidden by lease held waiver of breach. If a lessor, with knowledge of a breach by the lessee of the restriction against an assignment or subletting of the leased premises, permits the assignee to remain in possession of the premises and accepts subsequently accruing rents from him, the breach is waived.
Grant of relief on sufficient bill within discretion of chancellor which will not be disturbed unless abused. The granting of an injunction upon a bill, the allegations of which are sufficient upon which to rest a prayer for such relief and upon affidavits offered in support of the application, is a matter of discretion to be exercised by the chancellor, and will not be interfered with where no abuse of discretion is shown.
Appeal from Circuit Court, Palm Beach County; E. C. Davis, judge.
M. D. Carmichael, of West Palm Beach, for appellant.
H. L. Bussey, of West Palm Beach, for appellees.
This is a suit to enforce specific performance of a contract to renew a lease upon certain premises in the city of West Palm Beach and to restrain the lessor from molesting or interfering with the lessee's possession or from instituting any action or proceeding for the purpose of dispossessing the occupant. After answer and upon a hearing upon an application for temporary restraining order, an order was entered in accordance with the prayer of the bill, enjoining the lessor from taking any action for the purpose of dispossessing the lessee and repossessing itself of said premises.
The original parties to the lease were the Farmers' Bank & Trust Company, a corporation, lessor, and the Palms Publishing Company, a corporation, lessee. The term of the lease was from the 1st day of August, A. D. 1918, to the 1st day of January, A. D. 1922, 'with the privilege of renewing the lease for a period of two years from the date of expiration.' It contained a covenant by the lessee 'not to assign this lease or to sublet any part of said premises without the written consent of the lessor.'
The bill alleges that the Post Publishing Company, a corporation, one of the complainants, succeeded to the interests of the Palms Publishing Company, the lessee, in February, 1921, as the owner and publisher of a daily newspaper, continued the occupancy of said leased premises as theretofore by the original lessee, paying the monthly rentals to the lessor, as agreed and stipulated in the lease, and that the lessor knew of said transfer and occupancy and received and accepted payments of rent until the month of January, 1922, at which time the lessor refused the request of complainant Post Publishing Company for a renewal of the lease and notified the lessee to quit and deliver up possession of said premises to the lessor.
The answer in substance denies knowledge of the defendant lessor of the assignment of the lease or subletting of the premises, and denies any waiver of the provision of the lease against its assignment or a subletting by the lessee.
The granting of a temporary restraining order is assigned as error.
The record presents the question of whether the lessor had knowledge of the assignment or subletting by Palms Publishing Company, lessee, to Post Publishing Company, and thereafter accepted payment of rent and acquiesced in the use and occupancy of the leased premises by the latter company for the period of time stated.
That a lessor, by accepting the benefits of a lease, after an assignment or subletting by the original lessee, and by a course of conduct reasonably susceptible of a construction that he acquiesces in the assignment or subletting of the leased premises, notwithstanding a covenant against an assignment or subletting, may be held to have waived the covenant and to be estopped from asserting a forfeiture because of its breach, is well established. 16 R C. L. § 653; ...
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