Huyler's v. Ritz-Carlton Restaurant & Hotel Co.

• Decision Date: 08 September 1924
• Docket Number: No. 4.,4.
• Parties: HUYLER'S v. RITZ-CARLTON RESTAURANT & HOTEL CO. OF ATLANTIC CITY.
• Court: U.S. District Court — District of Delaware

1 F.2d 491 (1924)

HUYLER'S v. RITZ-CARLTON RESTAURANT & HOTEL CO. OF ATLANTIC CITY.

No. 4.

District Court, D. Delaware.

September 8, 1924.

H. H. Ward (of Ward, Gray & Neary), of Wilmington, Del., for plaintiff.

Robert H. Richards, of Wilmington, Del., for defendant.

MORRIS, District Judge.

Relying upon Woolley's Delaware Practice, §§ 431-435, and Gulf, C. & S. F. Ry. Co. v. Cities Service Co. (D. C.) 270 Fed. 994, the defendant moves that the declaration filed in this suit at law of Huyler's against "the Ritz-Carlton Restaurant & Hotel Company of Atlantic City" be stricken out upon the ground that there is a variance between the writ, which is in case, and the declaration, which, as the plaintiff contends, sets up facts that may be pleaded only in an action in covenant. The plaintiff, without questioning the mode by which the defendant objects to the asserted variance, takes the position that case, and not covenant, is the proper remedy for the injuries alleged, and that consequently there is no variance.

The facts set out in the declaration which give rise to these antagonistic views are that, while the plaintiff was tenant in possession under a long-term lease from Eden Company of a portion of a building in Atlantic City, where it maintained a retail store for the sale of its candies and other products, the defendant, with the intention and purpose of erecting on the site a large hotel, purchased the property occupied in part by the plaintiff. The defendant likewise purchased other property in the adjoining block. Soon thereafter, on March 6, 1920, the parties entered into an agreement under their respective corporate seals with respect to the vacation of the leased premises and the surrender of the leasehold by the plaintiff. The defendant agreed to pay to the plaintiff a specified sum of money and to lease to the plaintiff a store property in the adjoining block, upon which it was recited that the defendant intended to erect without delay a "building comprising stores, a theater, an arcade, and a bathing establishment." The plaintiff agreed to surrender to the defendant possession of the premises then in the occupancy of the plaintiff upon full performance by the defendant of its covenants. A copy of the proposed lease was annexed to the agreement. Upon the same day, March 6, 1920, a lease for a store property in the adjoining block was made under the corporate seals of the respective parties. Therein the defendant covenanted that it would promptly erect on the site in the adjoining block "a building comprising stores, a theater, an arcade, and a bathing establishment," in accordance with a blueprint theretofore furnished to the plaintiff. The specified term of ten years was to begin "at the date of completion of said building as certified by the architect's certificate, and commencing in any event not later than the 1st day of May, 1921, on or prior to which date the lessor warrants said building will be completed." The defendant further covenanted (second paragraph, page 5) "that throughout the said term, and renewal, if any, the lessee shall have the exclusive right to sell candy, soda, and appurtenant articles, within the building containing the leased premises, including the arcade, stores, and all other portions thereof."

Simultaneously with the execution and delivery of the lease the defendant executed and delivered to the plaintiff a further agreement as follows:

"March 6th, 1920.

"Huyler's, 136 East 18th Street, New York City — Dear Sirs: In consideration of elimination from the proposed lease, this day executed, of the word `theater' in the second paragraph on page 5, so that you as lessee have not the absolute right to the exclusive sale of your candy in the theater to be erected upon the premises, we hereby agree that, if said theater is at any time or times during the term operated by this corporation, you shall have said exclusive privilege, in which case your sales therefrom shall be included with your other sales in the premises in calculating your rent. If, on the other hand, we should let the theater to be operated by some other party, we undertake to use our best endeavors in good faith to induce said party operating the theater to accord you the said privilege upon a 10 per cent. basis. Yours very truly, for and on behalf of Ritz-Carlton Restaurant & Hotel Company of Atlantic City, Wm. Harris, President."

Soon thereafter the plaintiff vacated the premises occupied by it and surrendered the possession thereof to the defendant. The defendant, however, as it is alleged, has failed and refused to perform its "covenants and agreements and warrants," or any of its obligations or covenants under the lease, has failed and refused to give plaintiff possession thereunder, and has failed and refused to construct and erect a building "as provided in...