Grossenbacher v. Daly

• Citation: 287 S.W. 781
• Decision Date: 02 November 1926
• Docket Number: No. 19544.,19544.
• Parties: GROSSENBACHER et al. v. DALY et al.
• Court: Missouri Court of Appeals

287 S.W. 781

GROSSENBACHER et al. v. DALY et al.

No. 19544.

St. Louis Court of Appeals. Missouri.

November 2, 1926.

Appeal from Circuit Court, St. Louis County; Gustave Wirdeman, Judge.

"Not to be officially published."

Suit by H. E. Grossenbacher and another against Prank L. Daly and another. Judgment for plaintiffs, and defendants appeal. Reversed and remanded, with directions.

Roby Albin, of St. Louis, for appellants.

Clarence L. Wolff, of Clayton, for respondents.

DAUES, P. J.

This is a suit by plaintiffs, respondents here, as lessors of a certain store building in Overland, St Louis county, against defendants, appellants here, as lessees, to enjoin defendants from selling hosiery in the leased premises. The court perpetually enjoined defendants from selling any merchandise, including hosiery, during the continuance of the lease, except shoes, slippers, rubber boots, boots, overshoes, and shoe accessories. From this decree defendants nave appealed.

The lease is in printed form; the blank spaces were filled in by lessors and submitted to lessees for signatures, and was not changed by defendants. The lease contains a restrictive covenant, as follows:

"The above described store is to be used as a shoe retail store only, with the privilege of living in the rear."

The lease was executed on August 14, 1922, the term to begin September 1, 1922, and to run until September 1, 1927.

It is in evidence that the lessors, a year or more prior to the time the defendants secured this lease, had leased the adjoining store to one Pearce for a period of ten years, such other half of the building to be used for a general merchandise business. When the defendants under the lease now in controversy opened their store, they began by selling shoes exclusively, and did so for a period of one year, when they began the sale of hosiery in connection with their shoe business. It was then that the lessee, Pearce, engaged in the general merchandise business, complained to the landlord, who then sought to get the Dalys to discontinue the sale of hosiery, which request was refused. Thereupon plaintiffs brought this suit for injunction.

It is in evidence, and is not contradicted, that retail shoe stores in the community where this business is located, and also throughout the city of St. Louis, which is adjacent thereto, sell hosiery, shoe polish, and other shoe accessories. This evidence was introduced through shoe salesmen, who exactly agreed that retail shoe stores all handle these accessories, including hosiery. This was true before the lease was entered into, at that time, and subsequently, up to the day of the trial. The point before the court and the question here reaches a construction of the phrase, a shoe retail store only—whether this provision in the lease precludes defendants from selling hosiery in their retail shoe store.

Plaintiffs sought to show that the intention of the parties is made manifest to the effect that hosiery was not to be sold, first, by the fact that the lessees, the Dalys, did not sell hosiery for a term of one year after they entered the leased property; and, secondly, plaintiffs seek to rely upon certain evidence, which the chancellor excluded, which was to the effect that plaintiffs had told defendants before the lease was executed that the store was to be used for the sale of shoes only. Plaintiffs also offered to show by the witness Pearce, who was the adjoining tenant, that at the time defendants took possession under their lease, Pearce, who was then selling shoes in connection with his general mare chandise business, sold his entire stock of shoes to the Dalys, and that the selling of hosiery by defendants constituted a competition with the business of the adjoining tenant, Pearce.

The court ruled that the first evidence was improper since the lease was written, and that such oral conversation between the parties had been merged in the written contract. As to the proffered testimony of Pearce, the court ruled that the evidence was immaterial. We think this ruling on the evidence is correct.

It should be kept in mind in considering this lease that same was an instrument prepared by plaintiffs, and if the term "retail shoe store only" is ambiguous or doubtful, there are authorities to the effect that such doubt arising on the written contract, and if not aided otherwise, should be construed against the plaintiffs, the parties using the...