Harvey Corp. v. Universal Equipment Co.

• Decision Date: 28 March 1947
• Citation: 158 Fla. 644,29 So.2d 700
• Parties: HARVEY CORPORATION v. UNIVERSAL EQUIPMENT CO.
• Court: Florida Supreme Court

29 So.2d 700

158 Fla. 644

HARVEY CORPORATION v. UNIVERSAL EQUIPMENT CO.

Florida Supreme Court

March 28, 1947

Appeal from Circuit Court, Dade County; George E. Holt judge.

Ward &amp Ward, of Miami, for appellant.

Andrew T Healy and Thomas H. Anderson, both of Miami, for appellee.

CHAPMAN, Justice.

Involved in this appeal is the proper measure of damages to be awarded the plaintiff below against the defendant for unlawfully depriving and withholding from it the possession of Strath Haven Hotel, with furniture and fixtures, from July 20, 1944 until February 5, 1945. The question was raised in the lower court on exceptions to the Special Master's report, which were denied on final hearing, and again on petition for rehearing; and the soundness of the rule as approved and applied in the court below is challenged on this appeal.

The question arises out of a factual background substantially viz.: The Harvey Corporation leased the seasonal hotel Strath Haven from Bertsol, Inc., for a period of six years, beginning in September, 1941, and ending in September, 1947, paying therefor an average annual rental of approximately $31,000. The hotel was fully furnished and equipped and a deposit of $30,000 to fully secure the performance by the lessee of the lease was placed with Bertsol, Inc. The terms and several provisions of the lease were kept and observed from date of execution until December 10, 1942, when the Strath Haven Hotel was requisitioned for training purposes by the United States Army. The lease as drafted and adopted by the parties failed to provide for such a contingency as a war by the United States. The Harvey Corporation, with the consent and approval of Bertsol, Inc., surrendered possession of the hotel to the Army. The Universal Equipment Company acquired the title to the Strath Haven Hotel during the year 1944.

On December 10, 1942, Bertsol, Inc., landlord, and Harvey Corporation, tenant, entered into a written agreement brought about by the commandeering by the Army of the hotel for military purposes. Pertinent parts of the last agreement are viz.: '3. The tenant's obligation to pay rent, or occupy or operate the premises, and all obligations otherwise imposed upon the tenant by the terms of the lease shall abate during the period of time the Government is in possession of the demised premises.

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'7. (a) If the Government surrenders possession of the demised premises prior to November 1, 1945, then the lease and all of the tenant's obligations thereunder shall immediately become effective and shall be reinstated as of the date possession is so surrendered by the Government, and on such day, the tenant shall be obligated to resume possession of the demised premises and pay the rental required to be paid by the said lease agreement and the amendment thereto, including the relevant portions of this agreement.

'(b) The unexpired term of the lease, in such event, shall run from the day and month the Government vacates possession to the same day and month in the year 1947, provided, however, that in no event shall the termination date of the said term be prior to May 1, 1947, or after October 1, 1947. In this connection, in the event the unexpired term of the lease, as herein provided for, is less than a full twelve (12) months period, the amount of annual rental called for in the lease which the tenant is obligated to pay shall be decreased proportionately to the extent that the said unexpired term is less than a full twelve (12) months period, and the amount of rental to be paid by the tenant for this period shall be computed in the same manner as provided for the computation of rental in the event of abatement of rent for damage to the demised premises by fire or windstorm, as set forth on page 19 of the original lease agreement dated September 16th, 1941.

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'9. In connection with the furniture, furnishings and equipment in the demised premises, it is understood that the owner pays for the cost of removing, storing and returning any part of such inventory that the Government requests be removed from the demised premises. If the tenant resumes occupancy of the premises, it is understood that the premises and the contents thereof shall be accepted by it in the same condition as is delivered by the Government without any obligation on the part of the owner to make any repairs or replacements whatsoever; provided, however, that if, under the terms of the lease between the owner and the Government, the Government is liable to the owner for any items of restoration, renovation, repair or replacement to the demised premises, then this tenant shall be deemed to be entitled to all of the benefits of such claim and the owner will afford the tenant an equal opportunity with the owner to negotiate with the Government to the end that the said claim may be settled or enforced most expeditiously and to the greatest benefit to the premises, and all of the benefits of such claim shall accrue to the tenant and shall be utilized to accomplish the restoration, renovation, repair or replacement to the demised premises, and the owner will do no act which will impair or impede the enforcement of such claim. If, pursuant to the terms of this agreement, the lease is cancelled on November 1, 1945, the liability of the tenant under the lease agreement to deliver said premises and the contents thereof to the owner shall be limited to making up any deficiency in inventory which existed as of the date the Government took possession of the hotel on November 6th, 1942. It is contemplated that the Government will purchase some of the kitchen or other equipment or furnishings in the demised premises in which event the owner shall be obligated to replace the same if and when the tenant resumes occupancy of the premises; provided, however, that the owner shall not be required to expend in making such replacements any sums in excess of the sum actually paid by the Government as the purchase price of the equipment and furnishings bought by it. In connection with the provisions in this paragraph, the tenant has simultaneously with the execution of this agreement initialed and identified thereby the inventory of the furniture and equipment in the demised premises on the date delivery of same was delivered to the Government and of the furniture and equipment removed at the request of the Government from said demised premises.' On November 6, 1942, the Army, negotiating exclusively with the owner, went into possession of the hotel and retained possession thereof, with all the furniture and equipment, until about July 20, 1944, when the possession of all the property so previously held and occupied was by the Army returned to the Universal Equipment Company, together with the approximate sum of $26,500, being the estimated costs necessary for the restoration of the hotel, furniture and equipment for damages thereto caused by the Army during the period of its occupancy and possession. The plaintiff below demanded immediate possession after the return thereof to the owner of the hotel, furniture and equipment in conformity with the terms and conditions of the controlling leases signed by the parties. The record discloses that the parties and counsel held meetings and discussed or considered their business differences incident to the hotel but these negotiations proved fruitless. Language employed by the defendant below in a letter to an official of the plaintiff, in part, is viz.: 'My attorney informs me that the alleged lease or agreement by the Harvey Corporation has been in effect cancelled due to non compliance and numerous violations of the express terms of the said lease by yourself and your predecessors.'

The Harvey Corporation, on October 5, 1944, filed a bill of complaint against the Universal Equipment Company alleging in part: (a) that it was unlawfully deprived of the possession of the hotel property by the defendant; (b) that the defendant had had more than a reasonable time, at the time of the filing of the bill of complaint, in which to have delivered the entire property in conformity with their written agreements; (c) the defendant unlawfully had retained the $26,500 paid the defendant by the Army to be used in the restoration of the leased properties; (d) that the plaintiff was entitled to an accounting; (e) that an inventory of the furniture and equipment in possession of the defendant should be ascertained and the damaged items immediately repaired; (f) that the building should be repaired and the costs paid out of the funds delivered by the Army to the defendant; (g) missing pieces of furniture, furnishings and equipment should be replaced out of said funds and prayed that a receiver be appointed to take over all the hotel property, inclusive, of the $26,500 paid by the Army to the defendant for a restoration of the property; and that the court fix and determine the damages and losses suffered by the plaintiff because of the wrongdoing and arbitrary action of the defendant.

The Universal Equipment Company moved the court to dismiss the bill of complaint on grounds: (1) the bill of complaint was...