Masser v. London Operating Co.

• Decision Date: 02 November 1932
• Parties: MASSER et al. v. LONDON OPERATING CO.
• Court: Florida Supreme Court

145 So. 79

106 Fla. 474

MASSER et al. v. LONDON OPERATING CO.

Florida Supreme Court

November 2, 1932

Commissioners' Decision.

Suit by Harry Masser and another against the London Operating Company. From an order dismissing the bill, complainants appeal.

Affirmed.

ELLIS J., dissenting.

Common law is in force in Florida except where expressly modified by statute.

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

COUNSEL

Vincent C. Giblin, Aronovitz & Goldstein, and R. A. Johnston, all of Miami, for appellants.

John C Sullivan, Price, Price & Hancock, and Carl T. Hoffman, all of Miami, for appellee.

OPINION

DAVIS C.

On December 13, 1931, the appellants, as complainants, filed in the circuit court in and for Dade county, Fla., their bill of complaint, wherein they prayed 'for a temporary restraining order enjoining and restraining the appellee from further maintaining or prosecuting a certain summary action or proceeding, wherein the appellee is plaintiff and the appellants are defendants, pending in the County Judge's Court of Dade County, instituted by the appellee for the recovery of the possession of certain hotel property which it had leased to the appellants. The appellants also prayed that, upon final hearing, the temporary injunctive order by made permanent.'

It is shown by the bill that complainants went into possession of the property on November 3, 1930, by virtue of that certain lease which was involved and referred to in the opinion filed at the present term in certain causes pending here where the parties appellant and appellee are the same as in the instant case. 145 So. 72.

The lease, which is made a part of the bill of complaint, provides that, 'if for any reason default is made on the payment of rent herein required, the Lessor may at its option declare the lease at an end and may immediately re-enter and retake the premises and repossess the same as in their former estate.' The lessees, who are the appellants here, covenanted and agreed with the lessors as follows:

'12. If the premises shall be damaged by fire or other cause so as to be capable of being repaired within a reasonable time, the Lessor shall have the option to repair the same and during the time that the repairs are being made the Lessor shall remit to the Lessees a just and fair portion of the rent according to the nature of the damage sustained and according to the extent that the Lessees are deprived of the said premises; provided, however, that should said premises be damaged by fire or other cause during the summer months and same be repaired by Lessor before December 1st, of said year then said Lessees shall not be entitled to any damages or remittances of rent because of the deprivation or loss of the use of the premises occasioned to the Lessees by reason thereof.

'13. It is understood and agreed that no waiver of any condition or agreement in this instrument contained or acquiescence in any breach thereof shall be taken to constitute a waiver of any subsequent breach and that no damage to or destruction of any of the buildings on the premises by fire or otherwise shall be taken to entitle the Lessees to surrender the demised premises nor have the effect of terminating this lease.'

Among the covenants of the lessor is the following: 'That lessor shall keep in good state or repair the roof and outside walls of the building.'

It is alleged in effect that the lessor prior to the 26th day of October, 1931, breached and violated its said quoted covenant 'for that during the summer of the current year the said roof and the said walls became and were in bad repair for the want of needful and necessary reparation thereof and became and were leaky and incapable of providing proper and adequate protection against the entry of rainwater into the said hotel building and a large number of the rooms therein; that the complainants, subsequent to the said covenant and agreement and prior to the said 26th day of October, A. D. 1931, had frequently and repeatedly advised and informed the defendant of the said defective condition of the said roof and the said walls and had demanded of and from the defendant a compliance with, and performance of, its said covenant and agreement; that notwithstanding such frequent and repeated advice and information and such demands the defendant had, prior to the said 26th day of October, A. D. 1931, neglected, failed and fefused to place and put the said roof and the said walls in good state of repair and the same were, on the said late mentioned date, still in bad repair for the want of needful and necessary reparation thereof and were still leaky and incapable of providing proper and adequate protection against the entry of rainwater into the said hotel building and certain of the rooms therein'; that heavy rains had fallen in the locality of the said hotel and, by reason of the defective condition of the roof and the said walls, quantities of rainwater had entered the said building and had caused great damage and injury to the building, and had depreciated the rental value thereof to the damage of the lessees; that because of the breach of said covenant of the lessor, the complainants had, prior to the said 26th day of October, 1931, decided and determined to terminate the said lease, abandon the said premises and relieve themselves from further liability, which decision they communicated to the lessor on Cotober 26, 1931; that thereupon on said 26th of October, 1931, 'the defendant and the complainants made and entered into a contract and agreement wherein and whereby the defendant, for and in consideration of the promises and agreements on the part of the complainants, as hereinafter set forth, promised and agreed on its part that it would within a reasonable time after the said 26th day of October, A. D. 1931, place and put the said roof and the said walls in good state of repair, that the payment by the complainants to the defendant of the sum of fifteen thousand dollars ($15,000.00), originally stipulated in and by the said lease agreement to be paid for rent by the complainants to the defendant on the 1st day of November, A. D. 1931, should be postponed and deferred until such time as the defendant should place and put the said roof and the said walls in good state of repair, that the payment of the said sum for rent by the complainants to the defendant should be dependent upon the defendant's placing and putting the said roof and the said walls in good state of repair and that the defendant would not, unless and until it should have placed and put the said roof and the said walls in good state of repair, institute any action or proceeding for the recovery of the possession of the said demised premises because of the nonpayment by the complainants to the defendant of the said sum of fifteen thousand dollars ($15,000.00) for rent'; that, in the execution and fulfillment of their said agreement, the lessees continued in possession of the premises from and after October 26th, 1931, had expended large sums of money that it would not have expended otherwise, in fitting, equipping, furnishing and preparing the building for use and operation during the current winter tourist season, and had waived their right to terminate the lease agreement, abandon the said premises and relieve themselves from further liability for rent under the said lease agreement; that, notwithstanding said promises and agreements, the said roof and the said walls are in bad repair, leaky and incapable of providing adequate protection against the entry of rainwater into the said building to the damage of complainants; that on the 27th of November, 1931, the lessor served written notice upon the complainants, requiring them to pay within three days the sum of $15,000, which was due and payable on November 1, 1931, or surrender possession of the premises to the lessor. It was further alleged that, within three days from the service of said notice, a writ of garnishment that issued out of a justice of the peace court in a cause wherein the lessor is defendant was served on the complainants, and that on the 30th day of November, 1931, the complainants were served with a certain other writ of garnishment that issued out of the civil court of record in a cause wherein the lessor is defendant; that the lessor was apprised by the complainants of the service of said writs of garnishment; that, notwithstanding such apprisal, the lessor persisted in its demand upon complainants to pay the said sum of $15,000; that, if complainants were due the said lessor, as claimed by it, the said sum of $15,000 for rent, it could not have, after the service upon them of said writs of garnishment, paid the sum without assuming and incurring the risk of double liability, and without being required to correctly determine at their peril the question of the liability of the lessor to the plaintiffs in the said causes and the question of whether the said writs of garnishment had been properly sued out; that, notwithstanding the promises and agreements of lessor, and notwithstanding that said garnishments were in full force and effect, the lessor on December 1, 1931, instituted in the county judge's court of Dade county summary proceedings for the recovery of the possession of said premises for the nonpayment of the said sum of $15,000, and that it was its purpose to prosecute the same to final judgment.

It was further shown that on December 1, 1931, subsequent to the institution of said summary proceeding, the lessor addressed a communication to complainants whereby complainants were authorized to pay one H. H. Eyles the sum of $617.85 to be credited and applied to the said sum of $15,000 claimed by the lessor, and that...