Hecht v. Acme Coal Company
| Decision Date | 30 June 1911 |
| Docket Number | 640 |
| Parties | HECHT v. ACME COAL COMPANY |
| Court | Wyoming Supreme Court |
Original Opinion of February 28, 1911, Reported at: 19 Wyo. 18.
Rehearing denied.
Camplin & O'Marr, for plaintiff in error. (On petition for rehearing.)
The court failed to distinguish between the rule of law that where a person knew, or should reasonably have known, that the performance of his contract might be rendered impossible or illegal by reason of putting into operation an existing law, of which he had notice, and therefore against which he should have stipulated, and the rule of law that where a person did not know or could not reasonably have known or foreseen, the passage of a law that would render the performance of his contract unlawful. There is absolutely no evidence in the record that plaintiff in error knew, or could reasonably have known, that a law forbidding the sale of liquors outside of incorporated cities and towns would be passed. In fact, the record negatives any such knowledge. The lease was executed more than a year before the legislature which passed the law convened, and the lessee took possession of the premises more than a year prior to the passage of the law. No one could contend that the plaintiff in error knew or could reasonably have known what laws would be enacted more than a year in the future. We believe there is a clear distinction between the facts of the case at bar and the facts in the cases cited in the opinion to sustain the decision. At the time the lease was executed, which was before the court in the Texas case of Brewing Co. v. Keenan a prohibition law was in force, but it had not been submitted to the voters of the county wherein the premises were situated until after the execution of the lease there in question. The Texas case of Brewing Co. v. Brents is not in conflict with the principle we contend for, for the reason that the lease in that case did not restrict the use of the premises to saloon business, and the court intimated that if the lease had been so restricted the result might have been different. The New York case of Kerley v. Mayer was apparently decided upon the same principles which control the decision in the case of Brewing Co. v. Brents. The court said: "The premises might be used for any lawful purpose." This fact is not applicable to the case at bar. In the case of Obyrne v. Henley the court held that as there was not a complete destruction of the premises, the lessee must pay the amount of rent contracted for. This seems a harsh rule, and not based upon the equity of the case. In the Nebraska case of Wattles v. Ice Co., 50 Neb 251, the court held the reverse of the rule laid down in Obyrne v. Henley, and gave the lessee a reduction in the rent where part of the demised premises were destroyed without the fault of the lessee. In Abadie v. Berges, 6 So., 529, it appeared that a Sunday closing law went into effect after the execution of the lease, and it was held that the lessee would not be entitled to a reduction of the rent. In that case the premises were leased for the purpose of being used for a coffee house or barroom. The court did not pass upon what the effect of the restriction would be, for it was stated that the petition did not allege that the plaintiff was absoluely deprived of the enjoyment of the premises, and in the other cases cited we think the facts are such as to render them inapplicable to the case at bar.
( "Where the condition is possible at the date of the instrument, and subsequently becomes impossible by the act of God, or of the law, or of the obligee, the obligation and the condition both become void." (Id. 899 and cases cited.) "Where the duty or charge is imposed upon the party by the law, and not by his own contract, he will be excused from liability if performance of the duty becomes impossible without any fault on his part." (Id. 901 and cases cited.)
The court failed to construe the covenant of the lease to the effect that the premises were to be used for saloon purposes, and it should have held that said clause restricted the use of the premises to saloon purposes. It is well settled that a lease specifying a particular use implies a restriction upon any other use of the premises. The lease in this case negatives any other intention of the parties to lease the premises for any purpose other than that expressly stated, for it contains a provision requiring the saloon to be closed in the event of a strike or lock-out at the mine and relieving the lessee from the payment of rent during the time that the saloon is closed. The guaranty was not assignable, for it did not expressly guarantee the payment of money. Again, the assignment of the lease did not assign the guaranty. (12 Ency. L., 739; Potter v. Gronbreck, 117 Ill. 404.)
SCOTT, J., did not sit.
ON PETITION FOR REHEARING.
This case was decided February 28, 1911, the opinion appearing in 113 P. 788. The plaintiff in error has filed a petition for rehearing, stating several reasons therefor. It is alleged that we failed to consider and decide upon the sufficiency of the petition in the district court to state a cause of action against the defendant Hecht as guarantor. As we understand counsel, this claim is based on the contention that the assignment, as written on the lease, was no assignment of the guaranty, and that the guaranty was not assignable, and therefore the assignee could not maintain an action thereon in its own name. We do not understand it to be claimed that the lease could not be assigned; and certainly no such contention could be maintained. The assignment of the lease was an unqualified assignment of all of the rights and privileges of the lessor under and by virtue of the lease and while Hecht was not, strictly...
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