Kingpin, Inc. v. Hillcrest Development, 38962

• Decision Date: 31 January 1964
• Docket Number: No. 38962,38962
• Court: Minnesota Supreme Court
• Parties: KINGPIN INC., successor to Hillcrest Super Food Market, Inc., Appellant, v. HILLCREST DEVELOPMENT, Respondent.

Page 435

126 N.W.2d 435

267 Minn. 256

KINGPIN INC., successor to Hillcrest Super Food Market, Inc., Appellant, v. HILLCREST DEVELOPMENT, Respondent.

No. 38962.

Supreme Court of Minnesota.

Jan. 31, 1964.

Syllabus by the Court

The findings of a trial court are not to be set aside if reasonably sustained by a consideration of all the evidence. They are not to be set aside unless clearly or manifestly against the weight of the evidence or without any reasonable support in the evidence. This rule applies although the construction of written or documentary evidence is involved.

Under the facts and circumstances here, the decision of the trial court that the plaintiff is not entitled to any relief and that the action be dismissed with prejudice is correct as a matter of law and should be affirmed.

Robins, Davis & Lyons, Bernard Rosenberg and Elliot S. Kaplan, Minneapolis, for appellant.

Robert A. Dworsky, Richard E. Kyle and David C. Forsberg, St. Paul, Briggs & Morgan, St. Paul, of counsel, for respondent.

FRANK T. GALLAGHER, Commissioner.

Appeal from an order denying plaintiff's alternative motion for amended findings or for a new trial and from the judgment in an action for a declaratory judgment to determine the rights of the parties under two warranty deeds containing covenants restricting the use to which certain commercial property may be put.

For purposes of brevity we shall refer to plaintiff, Kingpin Inc., as 'Kingpin'; to defendant, Hillcrest Development, as 'Hillcrest'; and to defendant's lessees, Capitol Measts-Hillcrest Inc. and Lorraine's Milk Store, Dairy Home, as 'Capitol Meats' and 'Lorraine.'

Hillcrest owns all of block 4, Hillcrest Center, St. Paul, Ramsey County, Minnesota, except the following property:

The south 80 feet 8 inches of the north 265 feet 4 inches of block 4, Hillcrest Center, St. Paul, Ramsey County, Minnesota.

This tract, the use of which is the subject of this lawsuit, is owned by Kingpin and was purchased in 1949 by its predecessors in interest from the predecessor in interest of Hillcrest.

Hillcrest also owns other property in the area which, together with block 4, constitutes what is commonly referred to as the Hillcrest Shopping Center.

The deeds pursuant to which these conveyances were made provided in paragraph 2:

'SECOND: That the said parties of the second part, (Kingpin) Their heirs, assigns and grantees, will not use the said premises, or any part thereof, nor any building erected on the said premises for any purpose other than a general food market for a period of twenty-five (25) years from the date hereof; that the party of the first part (Hillcrest) does hereby grant to the parties of the second part, their heirs, assigns and grantees, the exclusive use and right to establish and maintain in Block four (4) Hillcrest Center, a general food market for a period of twenty-five (25) years from the date hereof, but such exclusive use and right shall not preclude the sale of drugs, sundries, candies, confections, ice-cream and kindred products, delicatessen, bakery goods or prepared meals or beverages by the party of the first part, its successors, assigns and grantees in the said Block 4, Hillcrest Center. The right to sell the foregoing items by others in said Block 4 shall not, however, prevent the sale of candies, confections, ice-cream, delicatessen, bakery goods or beverages by the parties of the second part so long as none of the same are consumed on the premises. It is understood and agreed that the first party, its successors and assigns, shall, in all conveyances of property in the said Block 4, Hillcrest Center, restrict the use thereof so that said property may not be used for the establishment of a general food market for a period of twenty-five (25) years from the date hereof, as hereinbefore set forth, and the first party, its successors and assigns, shall not be liable to the second parties, their heirs, assigns or grantees, for damages sustained by reason of the failure of the grantees of the first party, its successors and assigns, to fulfill such restrictive agreement.' (Italics supplied.)

The italicized portion of the above quoted paragraphs contains the covenants which Kingpin seeks to have nullified in this action. It claims that it should be relieved of performing these covenants because Hillcrest by its leases to Lorraine and Capital Meats has breached its covenant not to lease any other location in block 4 for operation of a general food market.

Among the establishments included in block 4, in addition to the one owned by Kingpin and the places leased by Capitol Meats and Lorraine, are an F. W. Woolworth Store, Crest Restaurant, Howard Owens Department Store, Coast to Coast Store, Big Wheel Auto Supply Store, and other enterprises. In block 7, adjacent to block 4 to the south, are Snyder Brothers' Drug Store and other places of business.

According to the record, a predecessor in interest of Kingpin erected a building on its property. Since April 1950, it has been used for the operation of a general food market selling a wide variety of food and nonfood items usually sold in so-called food markets in this area.

On December 9, 1954, Hillcrest leased about 1,200 square feet of floor space in block 4, known as 1664 White Bear Avenue, to William S. Rasmussen and Lorraine H. Rasmussen for a period of 5 years commencing January 1, 1955. The lease provided that the premises were to be used for the following purposes only:

'* * * For the sale of candies, confections, ice cream and kindred products, delicatessen, bakery goods (as hereinafter qualified) prepared meals, and beverages, except that the sale of bakery goods shall be limited to nationally or regionally advertised packaged bakery goods at full retail price and further that tenant shall not operate a general food market or grocery store, or a bakery shop.'

Thereafter a new lease dated April 1, 1957, was entered into between Hillcrest and said lessees for a period of 5 years from that date and the previous lease was canceled by mutual consent of the parties. A covenant almost identical to the one quoted above was contained in the new lease. The lessees' interest in the lease was thereafter assigned to Dairy Home, Inc. At the time of the trial, the business on the premises had been operated for about a year by Frank G. Beck as sublessee of Dairy Home, Inc. As stated earlier, we shall refer to it as Lorraine.

The case was tried without a jury. With respect to the business carried on by Lorraine, the court found:

'Since January 1, 1955, the lessees and operators of said store (Lorraine) * * * have carried, stocked and sold milk and other dairy products, prepared meats, packaged bakery goods and a limited variety and quantity of other food and non-food products. The average inventory of said business has...