Kendrick v. Robertson

• Decision Date: 24 January 1927
• Docket Number: 25759
• Citation: 111 So. 99,145 Miss. 585
• Court: Mississippi Supreme Court
• Parties: KENDRICK et al. v. ROBERTSON et ux. [*]

111 So. 99

145 Miss. 585

KENDRICK et al. v. ROBERTSON et ux. ^[*]

No. 25759

Supreme Court of Mississippi

January 24, 1927

Division A

. (Division A.)

1. INJUNCTION. Finding, in buyer's suit to enjoin ouster proceedings, that seller did not agree to procure lease on which buyer relied held sustained.

In suit by buyer of meat market and grocery business to enjoin proceedings to oust him from premises brought by seller after securing lease running to himself, evidence held to support chancellor's finding that seller, at time of sale, did not orally agree to procure a long term lease of premises for buyer and that buyer did not go into possession in reliance on such agreement.

2. LANDLORD AND TENANT. Vendee of personal property under bill of sale, not referring to good will, does not have paramount right of renewal of lease.

Under bill of sale conveying personal property, but making no reference whatever to good will or lease of premises wherein it was situated, vendee does not have any paramount right of renewal of lease on building under theory of tenant's right of renewal.

3 EVIDENCE. Unambiguous written contract or conveyance complete in all its essential terms, controls.

In measuring rights of parties to written contract or conveyance, which on its face is unambiguous and expresses an agreement complete in all its essential terms, the writing will control.

4 INJUNCTION. Attorney's fees held improperly allowed on dissolution of injunction, which was mere incident to relief prayed for Allowance of attorney's fees on dissolution of injunction held erroneous, where injunction was mere incident to relief prayed for, and, although hearing was in vacation on motion to dissolve injunction, the court adjudicated all rights of parties without objection.

HON. T P. DALE, Chancellor.

APPEAL from chancery court of Marion county, HON. T. P. DALE, Chancellor.

Suit by E. W. Kendrick and another against R. M. Robertson and wife. Decree for defendants, and complainants appeal. Affirmed in part, and in part reversed.

Decree affirmed in part, and reversed in part.

Davis & Conner and R. D. Ford, for appellants.

I. After there had passed from the appellees to appellant the right to the leasehold which the appellees had in this building and the good will of the stand, along with the fixtures and stock of goods in the building, is equity so powerless that it cannot intervene to prevent the appellees from filching away from the appellant Kendrick the very identical thing which he bought and paid for. Appellee Robertson himself opened up negotiations for the sale of this business; the appellant Kendrick and his co-partner, Pearson, paid for this business the last cent exacted by the appellee Robertson, and on the very terms exacted by him. The appellant Kendrick and his co-partner were placed in possession of this very business by the appellee Robertson, the deferred installments on the purchase price of this building and the rentals were promptly paid. Now, will equity permit the appellees to take advantage of the knowledge that they had acquired of the value of this business and their relation to the appellant Kendrick to deprive him of his "tenant's right of renewal?"

What is this "tenant's right of renewal?" It is a valuable right even though it is only a chance of obtaining a renewal of a lease to leasehold property. Fine v. Lawless, 201 S.W. 160, L. R. A. (N. S.) 1918C 1045; 16 R. C. L., page 904; McCourt v. Singers-Bogger, 76 C. C. A. 73, 145 F. 103, 7 Ann. Cas. 287; Crook v. Crook, 20 Abb. N. C. 249; Phyfe v. Wardell, 28 Am. Dec. 435; Spiess v. Rosswog, 63 How. Pr. 401, affirmed in 96 N.Y. 651.

It is too plain for argument that this thing which the appellee Robertson says that the appellant got was nothing more or less than a well-organized business at a well-known and well-located stand that had been frequented by customers for a long number of years, and was nothing more or less than good will.

"Good will" was defined by Lord ELDON in Crutwell v. Lye, 17 Vest. Jr. 335, 34 Eng. Reprint 129, simply to be "the possibility that the old customers will resort to the old places;" but in Churton v. Douglas, Johns V. C. 174, 70 Eng. Reprint 385, it was said that this was too narrow a view to take of it, that "It was every positive advantage acquired, arising out of the business of the old firm whether connected with the premises where it was carried on, with the name of the late firm or with any other matter carrying with it the benefit of the business of the old firm." See, also, Sanford-Day Iron Works v. Enterprise Foundry & Machinery Co., 138 Tenn. 437, 198 S.W. 258. The general rule is laid down in R. C. L. 995. The universal rule as announced in all of the decided cases is that a sub-lessee having acquired the good will of a business cannot be ousted by the lessee on the lessee's procuring a renewal lease. If such lessee procures a renewal lease, he will be held to be a trustee and to hold such renewal in trust for the sub-lessee. See Bennett v. Vansyckel, 4 Duer 462.

II. The bill of complaint raises the question of the tenant's right of renewal running in favor of appellant Kendrick. The chancellor's decision in this case necessarily denied this contention as a matter of law. The bill also sought relief on the ground that there was a trust impressed on this renewal release by reason of the fact that the appellees had been unfaithful to their relation to the appellant Kendrick in that they had secretly violated their obligation to appellant Kendrick to procure a renewal lease for a definite length of time and take the same in the name of appellant Kendrick and his co-partner, R. H. Pearson. The trial court erroneously decided this proposition adversely to appellant on the facts.

III. Another of appellants' assignments of error questions the court's findings as a matter of law, that the giving by J. Frank Brown of a notice to the appellant, Kendrick, R. H. Pearson and the appellees R. M. Robertson and Mrs. Bessie Robertson to vacate had the effect of terminating the rights of appellant Kendrick in a litigation as between the appellant Kendrick and the appellees the Robertsons. This notice given by the landlord, Brown, was not followed by any ouster proceedings begun by him.

This notice was not given in good faith, but was really a sham and a pretense as the result of instigation of the appellees and through collusion between them and the landlord Brown. The law in a case of this kind is set out in Fine v. Lawless, supra, where the court expressly held adversely to the contention of the appellees.

IV. Attorney's fees were erroneously awarded as damages at the conclusion of the hearing of this case on its merits on bill, answer and evidence. This was clearly wrong as was recently ruled in Staple Cotton Co-op. Ass'n v. Buckley, 106 So. 747, following a long line of decisions beginning with Mims v. Swindle 124 Miss. 687; Howell v. McLeod, 127 Miss. 1; Giglio v. Saia (Miss.), 106 So. 513; and Hunter v. Hankinson, (Miss.), 106 So. 514.

This case should be reversed.

Rawls & Hathorn and Hall & Hall, for appellees.

I. Practically the entire brief for appellants is based on the false assumption by him that he purchased or that there was conveyed to him or intended to be conveyed to him the good will of this business. Under a familiar rule of law that written documents speak for themselves, we think this inquiry should begin by an examination of the terms of the bill of sale or written instrument made, executed and delivered by R. M. Robertson to appellant Kendrick on September 18, 1924. Whatever right Kendrick may have acquired and now has in said property is founded on this written instrument. There is no provision in said instrument transferring the good will or established trade of the said R. M. Robertson, or the City Market, nor any reference whatsoever to the occupancy of said building.

We have no quarrel with the decisions referred to by appellant, beginning with Holt v. Holt, 1 Ch. Cas. 190, but we submit that in each and every one of this line of cases some element or circumstance entered creating more of a fiduciary relation between the parties than exist by virtue of the bill of sale from Robertson to Kendrick in the case at bar. In support of this statement we cite 16 R. C. L., page 905, discussing Renewals by Fiduciaries for Own Benefit Generally. A careful reading of the case of Fine v. Lawless, will convince the court that it also has no application to the case at bar.

II. Appellant quarrels with the trial court for finding from the testimony that Kendrick & Pearson did not go into the building in question relying upon an agreement with the appellees to procure for them a long term lease on said building. Appellants say that the chancellor's findings were contrary to the great weight of evidence. It is our understanding of the rule that this adjudication of a fact from conflicting testimony by the chancellor will not be disturbed unless it is so manifestly wrong as to work injustice or to shock the conscience of this court. We submit that the record abundantly supports the chancellor.

III. The third assignment of error goes to that portion of the chancellor's findings, wherein it was held that the tenancy of Kendrick & Pearson was terminated by the written notice from J. Frank Brown, the owner of the property, in September, 1924, and that on and after the expiration of thirty days after said time, said Kendrick & Pearson had no further rights to the possession or occupancy of said building, except as tenants at sufferance or at will. They proceed to set up a straw man, not reflected in the record, and then demolish it for their own amusement and gratification.

IV. Appellants say that the...