Lincoln Tower Corp. v. Richter's Jewelry Co.

• Decision Date: 16 March 1943
• Citation: 152 Fla. 542,12 So. 2d 452
• Court: Florida Supreme Court
• Parties: LINCOLN TOWER CORPORATION v. RICHTER'S JEWELRY CO., Inc.

12 So.2d 452

152 Fla. 542

LINCOLN TOWER CORPORATION v. RICHTER'S JEWELRY CO., Inc.

Florida Supreme Court

March 16, 1943

Appeal from Circuit Court, Dade County; Paul D. Barns Judge.

Henry D Williams and Alvin Cassel, both of Miami, for appellant.

George L Patterson and J. N. Morris, both of Miami, for appellee.

THOMAS, Justice.

In the lower court the pivotal point in controversy was the enforceability of a covenant, which we will presently quote, in a lease executed by appellant, as lessor, and appellee, as lessee.The property was one of a block of stores rented mostly to merchants of national repute and all the leases had a provision similar to, if not identical with, the one under study.Rental paid by a majority of the tenants was computed on a percentage basis, that is, it fluctuated to some degree in proportion to the sale or merchandise.

The particular renter, who is the lessor's adversary in this suit, was informed about the obligation that had been imposed on all tenants in the area to keep open their places of business throughout the year except on certain holidays.The covenant in the instrument to which the litigants were parties follows: '11) The lessee shall remain open for business [the] year 'round and shall not close excepting on holidays and after ordinary hours for business.It shall be the Lessee's discretion to determine what holidays the Lessee will observe and what business hours the Lessee will keep; but the undertaking of the Lessee to keep open and do business in the demised premises [the] year 'round is an integral part of this lease and one without which this lease would not be made.'

It should be stated at the outset that the master who heard the testimony and made findings of fact and law recognized the stipulation as 'valid and binding' and recommended a decree enjoining violation of it upon condition, however, that certain repairs be made to render the building 'watertight.'The chancellor in his decree declared the covenant 'valid' but decided that the mandatory injunction sought in the bill should not be granted.It was his view that the plaintiff'under the circumstances of this case' should be relegated to its remedy at law.

Further to simplify the dispute it may be stated that the appellee does not question the conclusion of the chancellor and the assertion of the appellant that the covenant was a valid one.In this state of the case, then, it seems unnecessary to elaborate on the purpose of such condition so we will devote most of our discussion to the nature of the circumstances to which allusion was made by the court in order to determine whether they were of such force as to relieve the appellee of the obligation of the lease and to justify the chancellor in rejecting the recommendation of the master that appellant should prevail.After determining this point we will then consider the propriety of the master's finding that the restraining order should issue upon condition that the property be repaired by the landlord.

The appellant quite properly applied to a court of equity for relief against a breach of the covenant by the appellee.Thus it could obviate further breaches not adequately compensable in a court of law.32 Am.Jur., Section 216, page 202.It was doubtless actuated by a desire to protect and maintain the character of all the property...