Frank v. Pioneer Metals, Inc., 59-349

• Decision Date: 30 June 1960
• Docket Number: No. 59-349,59-349
• Parties: Anne FRANK, Appellant, v. PIONEER METALS, INC., a Florida corporation, Appellee.
• Court: Florida District Court of Appeals

Page 685

121 So.2d 685

Anne FRANK, Appellant, v. PIONEER METALS, INC., a Florida corporation, Appellee.

No. 59-349.

District Court of Appeal of Florida, Third District.

June 30, 1960.

Rehearing Denied July 15, 1960.

Frank & Weston and Peter Strelkow, Miami Beach, for appellant.

George Cheren and Robert Golden, Miami, for appellee.

HORTON, Chief Judge.

This was an action of distress for rent whereby the appellant sought to enforce collection of certain rent due, and an acceleration of other sums due for rent under the terms of a lease between the parties. The amount of rent claimed by appellant's affidavit was $11,400. The trial court entered an order pursuant to hearing on appellant's affidavit for distress and the appellee's petition to fix bond. In its order, the court found, inter alia:

'It appears to this court that the plaintiff did not have the right to accelerate the rent for the balance of the term of the lease; that the distress warrant issued in this cause should be quashed; that the plaintiff should receive from the money deposited in this court, the sum of $1800.00 representing rent for the months beginning October 10, November 10, and December 10, 1958. It further appears to the court that the issues raised from the pleadings and statements of counsel with respect to the ultimate issues in this cause should be tried by an equity court.'

The cause was then transferred to the equity side of the court and the appellee filed an answer to the affidavit for distress and a counterclaim in which it prayed for relief in the form of money damages and termination of the lease and/or in the alternative, for cancellation of the lease as having been entered into through mutual mistake of the parties or because of the appellant's failure to comply with her duties in connection with the lease. In her answer to the counterclaim, the appellant prayed for additional relief. Upon hearing on the answer, counterclaims and answers thereto, the chancellor entered the decree appealed. By the decree the chancellor found:

'The Court finds that Pioneer Metals, Inc. leased space in a part of a warehouse owned by Anne Frank. This space was to be used only for the purposes of warehousing, distribution and manufacturing. It is quite apparent to the Court, from the evidence that it was the intent of the parties that the word 'manfacturing' should mean the operation of a sheet metal shop; furthermore, the evidence shows that the tenant was assured that the landlord would do everything that was necessary to obtain licenses and permits for the operation of a sheet metal shop. The lease should be considered as reformed to this extent. The lease was intended, and did restrict the use of the space rented to the business of Pioneer Metals, Inc., namely warehousing and distribution of the merchandise stored by it in the regular course of its business and the operation of a sheet metal shop.

'The evidence reveals that there were repeated warranties and assurances, prior to the signing of the lease, by the agents of Mrs. Frank that the space being leased by Pioneer Metals, Inc. could be used for its normal business purposes, including the operation of a sheet metal shop. These warranties and assurances should be considered as part of the lease agreement of the parties. These assurances and warranties were given despite the fact that Mrs. Frank, or her agents, had knowledge or should have had knowledge at the time these warranties and assurances were made to Pioneer Metals, Inc. of...