Parker v. Lewis Grocer Co., 42638

• Decision Date: 20 May 1963
• Docket Number: No. 42638,42638
• Citation: 153 So.2d 261,246 Miss. 873
• Parties: Richard T. PARKER et al. v. The LEWIS GROCER COMPANY et al.
• Court: Mississippi Supreme Court

Page 261

153 So.2d 261

246 Miss. 873

Richard T. PARKER et al. v. The LEWIS GROCER COMPANY et al.

No. 42638.

Supreme Court of Mississippi.

May 20, 1963.

Watkins & Eager, Henley, Jones & Henley, Jackson, for appellants.

Wynn, Hafter, Lake & Tindall, Greenville, Wells, Thomas & Wells, Cox, Dunn & Clark Jackson, for appellees.

McELROY, Justice.

The issues here presented for determination are (1) whether the court was correct in holding that a lease was ambiguous, and in permitting parol evidence to be introduced in the determination of the issues involved, and (2) the correct construction of a lease, whether it includes all or only a portion of a piece of land shown to the appellee and referred to as the Maywood Shopping Center, or Maywood Mart, in the City of Jackson, Mississippi.

The Chancery Court of the First Judicial District of Hinds County, Mississippi, entered a decree awarding to the appellees an injunction prohibiting appellants from leasing, or permitting anyone to use, any portion of buildings or property in what is termed by the appellants as 'Brenway Mart', for the purpose of a supermarket during the effective term of the appellees' lease or any renewal or extension of the lease. From this decree appellants make this appeal.

The parties to this appeal are: Appellants, Richard T. Parker, Ruby Boyd Parker, his wife, and Brenway Corporation, organized October 4, 1961, the entire capital stock of which is owned equally by Parker and wife, with the being the sole officers and directors, Parker being President, and his wife being Vice President, Secretary and Treasurer; Appellees, The Lewis Grocer Company, a Mississippi corporation, of which Morris Lewis, Jr. is President, which, as the sole complainant, filed its complaint in chancery court on May 7, 1962, and its wholly owned subsidiary corporations and affiliates, Sunflower Stores, Inc. and Sunflower Stores of Mississippi, Mississippi corporations, which two became co-complainants with their parent corporation, all three of which were referred to in the pleadings as 'The Lewis Grocer Company.'

The complaint in part states that Richard T. Parker, on March 12, 1956, acquired title from Richard T. Parker and M. A. Lewis, Jr. to, and became the owner of, a block of land composing nearly four acres of ground in the Southeast Quarter of Section Thirteen, Township Six North, Range One East, and during that year Richard T. Parker caused a building, a parking lot and other facilities to be constructed on the described property, all of which facilities were designed and constructed for use by various businesses and commercial enterprises to be located therein and to be operated as a business or shopping center; that the buildings, parking lot and other facilities were constructed solely for the purpose of leasing space to businesses and commercial enterprises, and that the defendant, Richard T. Parker, had leased space in the building and parking lots, which facilities have been named and referred to by the defendant as 'Maywood Shopping Center', to various firms, persons or corporations for the purpose of conducting and operating businesses; and Richard T. Parker, as lessor, on August 13, 1956, executed and delivered to the complainant, as lessee, a lease agreement wherein defendant leased and let to the complainant certain premises located in the above-mentioned Maywood Shopping Center which are more particularly described in said lease as follows, to-wit:

'That certain store space located in Maywood Shopping Center upon property owned by Lessor in Southeast Quarter (SE 1/4), Section 13, Township 6 North, Range 1 East, which said store space consists of approximately 13,600 square feet designated as Store Space Number Three (3) on the plan of Maywood Shopping Center, which said plan has heretofore been approved by both Lessor and Lessee. Said store space being hereinafter referred to as the 'DEMISED PREMISES'.'

The complaint further states that the term of the lease is 184 months, commencing September 1, 1956, and ending at midnight, December 31, 1971; that under the provisions of paragraph 8 of the lease the complainant, appellee, is granted the right to conduct a supermarket business on the demised premises, and that the complainant, since the completion of the buildings, has continuously operated and is presently operating a supermarket known as 'The Sunflower Store' on the demised premises under the rights granted the complainant by the terms of the lease; that paragraphs 8 and 27 of the lease contain certain covenants restricting use of the demised premises, and also, the use of the remainder of the buildings and premises constituting Maywood Shopping Center. Under the covenant the complainant agreed to use the demised premises for supermarket purposes only, and the defendant, Richard T. Parker, agreed not to use himself, or to lease to any other person, any space in Maywood Shopping Center, or any addition to or extension, for a supermarket.

The complainant agreed to pay for the use of the premises an annual rental amounting to one percent of the aggregate gross annual sales resulting from the supermarket business, or in the event one percent of the sales amounted to less than $10,500, a minimum guaranteed annual rental of $10,500. Complainant would show that according to the agreement and intention of the parties to the lease, the utmost good faith and fair dealings was to be exercised by both parties to maintain a gross annual sales resulting from the supermarket business and a maximum in order that the percentage rental to be paid under paragraph 2 of the lease would be substantially greater than a minimum guaranteed annual rental and in order to insure that the volume of business enjoyed by the complainant would be sufficient to pay the minimum guaranteed annual rental of $10,500, and, in addition thereto, be a profitable business for complainant. Richard T. Parker is under a duty and obligation to the appellee not to do or perform any act which would decrease the volume of business of the supermarket, thereby causing the appellee not to be able to properly operate the supermarket.

On September 11, 1953, the defendant, Richard T. Parker, together with M. A. Lewis, Jr., Ludwell Pierce, and M. A. Madden and Pauline B. Madden, acquired title and became owners of real property immediately west of and adjacent to the above described tract of land on which Maywood Shopping Center is presently located. This land is situated in the northeast intersection of U. S. Highway 51 and Northside Drive and the Southeast Quarter of the Southwest Quarter, and the Southwest Quarter of the Southeast Quarter of Section Thirteen, Township Six North, which land consists of about three and a half acres and lies adjacent and west and northwest of the Maywood Center. The Maddens conveyed their interest later to Richard T. Parker and M. A. Lewis, Jr.

On August 13, 1956, when appellant, Richard T. Parker, leased appellee, The Lewis Grocer Company, the land, or was talking about leasing the land in Maywood Shopping Center, and at the time of the execution of the complainants' lease as set forth, the defendant Richard T. Parker stated to and advised the complainants of his desire to expand Maywood Shopping Center, on the adjacent and adjoining property, at some future time, and explained the alleged business benefits to be drived by complainant as a result of the expansion: that during the early part of the year 1961 Richard T. Parker began making plans to construct an addition to the Maywood Shopping Center on the adjoining land, and made plans to lease a portion of the property, the proposed buildings to be constructed on the land, to Jitney Jungle or its affiliates as use as a supermarket. Richard T. Parker advertised in certain newspapers and by other means and informed the President of appellee's (The Lewis Grocer Company) company of his intention to construct an addition to Maywood Shopping Center, using the above described adjacent land for such purpose. Advertisements and representations were to the effect that the addition and expansion was to be an enlargement of the presently existing Maywood Shopping Center, and that the defendant advised that various kinds and types of stores, including a supermarket, would be operated in the additional buildings, all of which business was to be operated as a part of the Maywood Shopping Center. During the month of June, 1961, Richard Parker, realizing his obligations and duties to the complainant under his lease, contacted the President and requested that he waive and relinquish, on behalf of complainant, its right under the covenants contained in the complainant's lease, this being the first knowledge that complainant had that the proposed building on the adjacent land and the proposed expansion of the Maywood Shopping Center would include space to be used for a supermarket; they had several conferences in reference to this, and, after a thorough study of the matter, on July 20, 1961, by letter, the appellee advised the appellant of its refusal to waive or relinquish its rights or covenants under the lease, and further advised the appellant that the proposed lease to another supermarket would be disastrous to the appellee's business and would cause the appellee to suffer great loss of profit. In spite of the appellee's refusal to waive the covenants contained in its lease, Parker proceeded with his plans and constructed buildings on the property adjoining Maywood Shopping Center, and, in anticipation of the construction of the buildings, on October 10, 1961 the appellant, Parker, conveyed to M. A. Lewis, Jr. his one-half undivided interest in part of the adjoining property. M. A. Lewis, Jr. acquired title to the western part of the property by deed, and on August 21, 1961 M. A. Lewis, Jr. conveyed the property in question to Ruby Parker, the wife of the defendant Parker. This tract consisted of the...