North Ave. Market, Inc. v. Keys

• Decision Date: 01 February 1933
• Docket Number: 94.
• Citation: 164 A. 152,164 Md. 185
• Parties: NORTH AVENUE MARKET, INC., v. KEYS.
• Court: Maryland Court of Appeals

164 A. 152

164 Md. 185

NORTH AVENUE MARKET, INC., v. KEYS.

No. 94.

Court of Appeals of Maryland

February 1, 1933

Appeal from Circuit Court No. 2 of Baltimore City; Albert S. J Owens, Judge.

Suit by the North Avenue Market, Inc., against William F. Keys. From an order dissolving an injunction after submission of the question involved on bill and answer, the plaintiff appeals.

Order reversed, and case remanded.

Argued before BOND, C.J., and PATTISON, URNER, ADKINS, OFFUTT DIGGES, PARKE, and SLOAN, JJ.

Raphael Walter, of Baltimore (Sykes, Nyburg, Goldman & Walter, of Baltimore, on the brief), for appellant.

John Holt Richardson, of Baltimore, for appellee.

SLOAN J.

This appeal is from an order dissolving an injunction, after submission of the question involved on bill and answer.

The bill of complaint alleges that the appellant is the owner of the North Avenue Market, in Baltimore, which consists of two hundred and fifty-eight market stands, occupied by about seventy retail merchants engaged in the sale of various and sundry food products; that on August 30, 1929, it leased two stands to the appellee for the term of two years beginning September 16, 1929, the appellee now being a hold-over tenant, to be "used exclusively and only for the sale of Delicatessen and full line of Domestic and Imported Cheese and Sliced Bacon, Westphalia Hams and Smoked Loin Backs at Retail and for no other purpose"; that "notwithstanding the aforesaid restriction as to use the said Defendant wrongfully, in violation of the rights of" the plaintiff, "has offered for sale and does sell from said stands uncooked smoked hams of a kind and variety which are not Westphalia hams and of a kind and variety that are in violation of the aforesaid restriction"; that, after notice from the plaintiff (lessor) to the defendant of the alleged violation of the terms of his lease, the defendant gave the plaintiff by letter of July 1, 1932, his assurance that the sale of uncooked hams would be discontinued, but that he had since resumed their sale, against which the plaintiff has no adequate remedy at law, and prayed the writ of injunction which was granted. The defendant (appellee) answered that it had not "done anything in violation of the rights of the plaintiff, or has done anything in violation of the terms of the lease"; that he admitted signing the letter of July 1st, but charged that it was signed "under duress, in that on Friday, July 1st, at 5 P. M., he was summoned to the office of the plaintiff, and there shown the letter which had been prepared by the attorney for the plaintiff, and he was then and (there) threatened by the agents of the plaintiff that unless he signed said letter, he would not be permitted to occupy his stand the next morning, Saturday, the day most profitable to the defendant"; that he admitted his refusal to abide by the terms of the letter so signed by him, and that he should not be obliged to, as his signature thereto was procured by duress; and further says "the selling of uncooked smoked hams in said space is not a violation of the said lease or the terms thereof," and that he had sold such hams in said space to the plaintiff's knowledge, and "that other tenants of the defendant occupying spaces in said market under lease from defendant for purposes almost identical with those of the lease of the defendant, sell uncooked smoked hams from and in said spaces." The defendant denied the claims of the appellant that the alleged violation of his lease was injurious, and that it had no adequate remedy at law for the redress of its grievances.

The appellant excepted to answer and each and every part thereof, and its exceptions were overruled.

The appellee's contention is that his answer is a full and complete denial of the allegations of the bill, and that, because the hearing was on bill and answer, his denial must be accepted as true in fact, and the allegations of the bill as sworn away. The appellant contends that the appellee's answer is virtually an admission of the facts set up in the bill, and therefore the only question is one of construction of the lease and a definition of the defendant's rights thereunder.

According to Alexander's Chancery Practice, 66, after answer, if the plaintiff determines to prosecute "he may at his election, set down the cause for hearing, at the succeeding term. But on such hearing, he would be held to admit the truth of the whole answer, or, at least, of so much as is susceptible of proof. This course is, therefore, hazardous, except in a clear case." Mr. Miller, in his Equity Procedure, 706, summarizing the decisions on the practice in this state, says: "When a motion to dissolve is heard on bill and answer, all the allegations of the bill, which are not denied by the answer, are taken to be true. This rule is said to be as well settled as any rule of practice can be. If the facts of the bill be admitted or not denied the injunction will be continued. But if any allegation of the bill be denied by the answer, such allegation cannot be considered. With respect to the answer, the rule is that when a motion to dissolve is heard on bill and answer, the responsive averments of the answer are taken as true." See, also, note to Salmon v. Clagett, 3 Bland, 125; Brantley's Ed. 142.

The substantial averment of the bill is that the appellee is selling, in violation of the terms of his lease, "uncooked smoked hams of a kind and variety which are not West-phalia hams." The appellee, in his answer, denies that he has done anything in violation of the terms of his lease, and then admits the selling of "uncooked smoked hams," and justifies his action, not by claiming that "uncooked smoked hams" are "delicatessen," but because, by way of avoidance, "that other tenants of the defendant occupying spaces in said market under lease from the defendant (plaintiff) for purposes almost identical with those of the lease of the defendant, sell uncooked smoked hams from and in said spaces."

With such an admission (State v. Northern Central Ry Co., 18 Md. 193, 219) the case rests on the sufficiency of the averments of the bill to entitle the plaintiff to an injunction to hold the defendant within the bounds of his lease. The appellee...