Greil Bros. Co. v. Mabson

• Decision Date: 19 December 1912
• Parties: GREIL BROS. CO. v. MABSON.
• Court: Alabama Supreme Court

60 So. 876

179 Ala. 444

GREIL BROS. CO. v. MABSON.

Supreme Court of Alabama

December 19, 1912

Rehearing Denied Feb. 13, 1913.

Appeal from Circuit Court, Montgomery County; W. W. Pearson, Judge.

Assumpsit by T. H. Mabson against the Greil Bros. Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

The action was based upon eight promissory notes for the sum of $300 each, together with attorney's fees, given as rent notes for a certain part of the Windsor Hotel and fixtures therein, to be used for a barroom, and for no other purpose. The following are the special pleas referred to:

(3) "That the consideration for the notes sued on was for rent of the barroom and fixtures known as the Windsor Hotel bar, located in the Windsor Hotel building in the city of Montgomery, Alabama, on Commerce street therein, which said property was rented and hired to the defendant by the plaintiff on, to wit, the 8th day of May, 1907, for occupation and use as a bar, and not otherwise for and during the term of five years to wit, from the 8th day of May, 1907 to the 8th day of May, 1912, inclusive, at and for the sum of $300 per month, payable on the 8th day of each month in advance; and defendant avers that heretofore, to wit, on the 23d day of November, 1907, a law was enacted by the General Assembly of the state of Alabama entitled 'An act to prohibit the manufacture, sale, barter, exchange, giving away to induce trade, the furnishing at public places or otherwise disposing of any alcoholic, spirituous, vinous or malt liquors or other liquors or beverages by whatever name called, which if drunk to excess will produce intoxication except the sale of alcohol in certain cases upon certain conditions, and except the sale of wines for sacramental purposes.' Defendant further avers that on and after the 1st day of January, 1909, it became unlawful by reason of the enactment of said law to sell spirituous, vinous, or malt liquors in the city or county of Montgomery and the property so rented and hired to it by the plaintiff, as above alleged could not be lawfully used by it for the purpose for which the same was rented and hired; and defendant further says that on, to wit, the 31st day of December, 1908, it abandoned the possession of said property and tendered the same to the plaintiff; wherefore it says, it is not liable."

(4) Practically the same as 3 down to and including the words "in advance," and then sets out specifically the description of the room, together with a detailed description of the fixtures and furniture therein included. It adds "And defendant avers that, pursuant to the provisions of said contract, defendant did, through its subtenant, go into the possession of said property and use the same for the purpose of conducting a barroom up to the 1st day of January, 1909. And defendant further avers that on and subsequent to the 1st day of January, 1909, the said property could not be further lawfully used by it for the purpose for which the same was rented and hired, for the reason that on or about the 23d day of November, 1907, a law was enacted by the Legislature of Alabama entitled" (same title as set out in plea 3, with the conclusion of the plea as shown in plea 3).

(5) Same as 4, with the description of the property therein contained, and alleging that said store fronted on Water street, in the city of Montgomery, and that the front thereof was so arranged that the entire length and height thereof was built up with the same character of material as the said bar fixtures, to wit, hardwood and glass, making the appearance attractive, and blown in on one of the glasses in front of the said bar were the words "Exchange Bar," and that the balance of the property so rented and hired by the defendant from the plaintiff was such personal property as had always been used for carrying on and conducting a barroom. "And defendant further avers that said property was rented and hired to it by the plaintiff, the plaintiff knowing that the same was to be used by the defendant, or by some one to whom the same would be rented and hired by the defendant, for the purpose of operating a barroom, wherein intoxicating liquors and beverages would be sold; and the consideration for the use and hire of such property by the defendant from the plaintiff was fixed, and so understood by the plaintiff, to be based upon the fact that the same was to be used for the purpose of selling intoxicating liquors and beverages." Then follows the allegation of the enactment of the law set out in plea 3, with the conclusion as in plea 3.

Plea 6 sets up the same facts as plea 3, with the allegation that the contract was terminated on the 1st day of January, 1909, because of the enactment of law referred to in plea 3.

The demurrers raise the question as to the sufficiency of the allegation of incapacity to use the building for other purposes than the sale of intoxicating liquors; that the allegations fail to show that the notes sued on were destroyed by the passage of the act therein referred to; that it is not shown by the allegations of the pleas that the passage of the act therein referred to destroyed or deprived the defendant of the beneficial use of the premises. It is not alleged that the plaintiff declined or refused to permit the defendant to use the premises for other legitimate purposes, or that the plaintiff consented to an abandonment of the premises, or re-entered and took possession so as to release defendant of his obligation to pay; that no estoppel is shown, and no facts alleged which would constitute a legal defense to the notes sued on.

Steiner, Crum & Weil, of Montgomery, for appellant.

J. M. Chilton, W. M. Blakey, and Hill, Hill & Whiting, all of Montgomery, for appellee.

DOWDELL C.J.

The lease, as entered into by the parties, says "that the parties of the first part have this day leased to the parties of the second part the following premises in the city of Montgomery, Ala., viz.: The barroom and fixtures known as the Windsor Hotel bar, and located in the Windsor Hotel building on Commerce street, for occupation as a bar, and not otherwise." It will be noted that the lease includes the barroom and fixtures inseparably, and provides that the room is to be occupied "as a bar, and not otherwise." Appellee was bound, under this contract, to have permitted the use of the property as a bar, and the appellant was prohibited from using it for any other purpose. 24 Cyc. 1062-1064, and note 6; Parkman v. Aicardi, 34 Ala. 393, 73 Am. Dec. 457; McDaniel v. Callan, 75 Ala. 327.

"Bar" and "barroom" seem to have a more restrictive meaning than "saloon," and by the great weight of authority mean a place from which intoxicating liquors are to be sold....