Leavitt v. Windsor Land & Investment Co., 181.

• Decision Date: 20 February 1893
• Docket Number: 181.
• Citation: 54 F. 439
• Parties: LEAVITT v. WINDSOR LAND & INVESTMENT CO. et al.
• Court: U.S. Court of Appeals — Eighth Circuit

54 F. 439

LEAVITT v. WINDSOR LAND & INVESTMENT CO. et al.

No. 181.

United States Court of Appeals, Eighth Circuit.

February 20, 1893

Statement by CALDWELL, Circuit Judge:

On the 27th day of September, 1889, William H. Bush, is contemplation of the erection by him of a theater building in Denver, Colo., entered into a contract with Michael B Leavitt whereby the latter acquired the right to the use and occupation of the theater building so to be erected, and the exclusive management, conduct, and control of the theater business therein, for the term of five years from the date of its completion. The building was completed, and possession delivered to Leavitt under the contract, on the 18th day of August, 1890. The provisions of the contract material to the case are as follows:

'And the party of the first part, (Leavitt,) in consideration of the before-mentioned covenants to be performed by the party of the second part, agrees, for himself, his heirs and assigns, to pay to the party of the second part, as rental for the premises hereinbefore described, the sum of eight thousand ($8,000) dollars per year for the first three years of the said term of five years, and the sum of nine thousand ($9,000) dollars per year for the last two years of the said term of five years; and if, as is hereinafter provided, said party of the first part shall continue as lessee of said premises an additional five years, the rental for the said term shall be as the parties may agree hereafter. All rents received under this lease shall be paid monthly, in advance beginning on the day possession shall be given to the party of the first part, and on the corresponding day of every month thereafter during the continuance of this lease. And the party of the first part, for himself, his heirs executors, and assigns, does further agree to pay to the party of the second part, his heirs, executors, and assigns as additional rent for the above-described premises, annually, during the term of this lease, a sum equivalent to one half of the net annual profits accruing from the business of the theater, and a full, complete statement and settlement of such business shall be made each week during the continuance of this lease, and payment shall be made at the same time. It is further covenanted and agreed between the parties hereto that the percentage to be paid to the companies performing at this theater shall be fair and reasonable, and, if possible, no greater than the percentages paid at other first-class theaters in the cities of New York, Chicago, and St. Louis. It is further stipulated and agreed between the parties hereto that the salaries of the manager and treasurer of said theater shall be such reasonable amounts as will be paid to such officers in the cities of New York, Chicago, St. Louis, and San Francisco. * * * Said party of the first part further agrees to pay the sum of three hundred and fifty dollars per month, for each and every month during the continuance of this lease, for electric light and heating; payments to be made to party of the second part. The party of the second part, however, agrees to defray all expenses for engine and firemen, fuel, and repairs of steam and electric plants, and the party of the first part to keep the globes and lamps in the theater and entrance in good repair. The party of the first part further agrees to maintain and operate the theater as a strictly first-class place of amusement, and that no attractions shall be booked at the said theater of a questionable character, or such as would not be regarded as first-class by the managers of the following theaters: The New Broadway or Wallack's, A. M. Palmer's or the Lyceum, of New York; McVicker's, Hooley's Chicago Opera House, or the Columbia Theater, of Chicago; the Olympic or Grand Opera House, of St. Louis. The party of the first part agrees to keep the theater in perfect repair, at his own cost and expense, during the continuance of this lease, and to deliver possession at the termination thereof in as good order as when possession was given to him, ordinary wear and tear incident to theaters, and incidents from fires, storm, or the act of God, only excepted. * * * It is further understood and agreed that the party of the second part shall have no control, authority, or voice in the conduct, management, or affairs of said theater business, but this shall be exclusively under the control of the party of the first part. It is further understood and agreed that, upon the expiration of the five years for which said premises are demised, said party of the second part, his heirs, executors, and assigns, agree that they shall be obliged to give the party of the first part, his heirs, executors, and assigns, the preference and first choice to take a new lease for five years or more, and until said party of the first part shall decline to take such lease, said party of the second part shall not be at liberty to lease said premises to any other person. And it is hereby agreed that the rental for the second term of five years shall not exceed fifteen thousand dollars per annum rental, and fifty per cent. of the profits of the business. The acceptance or rejection of this second five years shall be made six months prior to the termination of this lease for the five years aforesaid. And it is further agreed that the party of the second part shall have placed at his disposal a private box in said theater, for the use of himself and friends, rent free; the selection to be made by said second party before the said theater is open. And it is further agreed that, should there be any losses in carrying on of the said theater during this lease, that the same shall be borne by the said parties hereto in equal portions, i.e. the said first party, fifty per cent.; and the said second party, fifty per cent. Finally, it is agreed by the parties that, should the party of the first part fail to perform any of the covenants herein required to be by him performed, then this lease shall be null and void, and the party of the first part empowers and authorizes the party of the second part, his heirs or assigns, to re-enter without process of law, and take possession of the premises, and have and hold the same, as though this lease had not been made. In witness whereof, the parties have hereunto set their hands and seals the year and day first above written.

'M. B. Leavitt. (Seal.) 'Wm. H. Bush. (Seal.)'

During the year 1890 the lessor, Bush, sold and conveyed the leased premises to the Windsor Land & Investment Company, which succeeded to all the rights and obligations of the lessor Bush, under the lease. On April 9, 1891, the appellee, the Windsor Land & Investment Company, by and through its agent, Bush, took forcible possession of the theater building and excluded the lessee, Leavitt, and his agents, therefrom. Thereupon the original bill in this case was filed in the court below by the lessee, Leavitt, against the Windsor Land & Investment Company and against William H. Bush, Frank C. Young, and Edward W. Rollins, who were in possession of the building, managing and controlling it, as agents of the Windsor Land & Investment Company. The bill set out the contract, averred that the complainant had performed the covenants thereof on his part, and that the defendants had, with force and arms, ejected him from the leased premises, and taken possession thereof, and prayed, specifically, 'for a mandatory writ restoring complainant to the possession' of the premises, for an injunction restraining the defendant from interfering with the lessee's possession or the management of the property, and for a specific performance of the contract. The defendants answered the bill, denying that they entered upon the leased premises by force, and alleged that they entered peaceably and lawfully, for breaches of the covenants of the lease on the part of the lessee, for which they were entitled to re-enter by the terms of the lease. Upon the hearing of the motion for an interlocutory injunction the lower court restored the lessee to the possession of the premises, and enjoined the defendants from interfering with such possession. On June 4, 1891, the defendants filed a cross bill alleging that the lessee Leavitt had forfeited all rights under the lease by violating its terms and conditions in the following particulars: (1) That he had devoted a very small portion of his time to the management of the Broadway Theater, but had turned over to his employes almost the entire management and control of the same. (2) That the box office was not kept open at the hours and times it was advertised that it would be open, and when it should have been open. (3) That Leavitt's representatives and agents in the management of the theater refused to sell tickets for popular attractions at the box office, but put them on sale with outside parties at prices much higher than the regular rates, and converted the receipts in excess of the regular rates to their own use. (4) 'That the said Leavitt hath utterly and wholly failed to observe and perform that clause of said contract which provides that none but first-class troupes shall be permitted to occupy the said theater, and, on the contrary, your orators allege the truth to be, in that regard, that many inferior attractions and troupes, and troupes and attractions of a questionable character, have been permitted to occupy the said theater, and to perform thereat, and many troupes and attractions which would not be regarded as first-class by the managers of the theaters designated in the said contract of lease; and your orators state that the following are some of the attractions which have appeared at said theater,...