Parrish v. Robertson

Citation195 Va. 794,80 S.E.2d 407
Decision Date15 March 1954
Docket NumberNo. 4175,4175
PartiesARCHIE F. PARRISH, MARY CRILLY, EVA R. DANIELS AND E. L. DONALSON, PARTNERS, TRADING AS ARCHIE'S LOBSTER HOUSE v. VIVIAN M. ROBERTSON AND PAUL K. ROBERTSON. Record
CourtSupreme Court of Virginia

Woodrum, Staples & Gregory, Clifton A. Woodrum, Jr. and James L. Trinkle, for the appellants.

Arthur E. Smith and M. Caldwell Butler, for the appellees.

JUDGE: WHITTLE

WHITTLE, J., delivered the opinion of the court.

Vivian M. Robertson and Paul K. Robertson, hereinafter referred to as the Robertsons, filed a motion for judgment against Archie F. Parrish, Mary Crilly, Eva R. Daniels, and E. L. Donaldson, partners, trading as Archie's Lobster House, hereinafter referred to as Parrish. The motion sought the recovery of damages growing out of Parrish's failure, as lessee of certain premises for a term of three years, to operate thereon a restaurant for the full term, as required by an alleged covenant in the lease.

The trial court held that an accounting was necessary and the case was transferred from law to chancery, and Master Commissioner William L. Martin was appointed to take evidence and report his findings. The Commissioner heard the case and decided the issues. His findings, which will be considered later, permitted the Robertsons to recover of Parrish the sum of $68.04, representing ten per cent remaining unpaid on a net profit in the business of $680.37. Exceptions to the report were in the main sustained by the trial court, and a decree was entered granting the Robertsons a judgment in the sum of $7,000, with interest as therein provided. From the decree Parrish appealed.

The record discloses that on March 4, 1947, Archie F. Parrish entered into a lease with the Robertsons for a certain building then under construction on U.S Route 11, outside the corporate limits of the city of Roanoke. The structure was completed, and on May 1, 1947, Parrish was placed in possession. While Parrish was the sole signer of the lease, he had as partners (allegedly unknown to the Robertsons) Mary Crilly, Eva R. Daniels, and Fla Romick. Later Romick withdrew as a partner and E. L. Donalson succeeded him.

The second paragraph of the lease, the basis of this controversy, reads as follows:

'The lessors agree to the (sic) lease to the lessee and the lessee agrees to lease from the lessors that certain property known as Archie's Tavern, located on U.S. 11 near Cove Road and being the same property purchased by Paul K. Robertson from A. T. Loyd, Special Commissioner, the said property to be used as a Night Club and Tourist Home for a term of three years, with option on same building for another three years, commencing on the date the building is completed and ready for occupancy, at the base rental of $250.00 per month, plus 10% of the net profits from the operation of the business, which base rental and the net profit are payable on the first day of each month -- the base rent being payable in advance, and the net profit at the end of each month.'

While the above paragraph indicates that the premises were to be used 'as a night club and tourist home', it is conceded by the parties that a general restaurant business was to be operated therein.

From May 1, 1947, until November 1, 1948, a period of eighteen months, Parrish operated such a business in the premises under the name of 'Archie's Sea Food Tavern'. On or about October 1, 1948, Parrish leased 'Warren's Chicken House', located on U.S. Route 11, nearer the city of Roanoke. The name of this establishment was changed to 'Archie's Lobster House', and on November 1, 1948, Parrish commenced to operate therein a general restaurant.

When Archie's Lobster House was placed in operation as a general restaurant, Archie's Sea Food Tavern ceased to operate as such; however, Parrish did operate the tavern as a business catering mainly to banquets and special parties.

From May 6, 1947, through October 8, 1948, Parrish paid the Robertsons the base rental of $250 each month and in addition thereto paid ten per cent of the net profits. The months of January, February, and March, 1948, disclosed no net profits and only the base rental of $250 for each of these months was paid. The ten per cent of the net profits for the other months varied from $47.87 in July, 1947, the lowest month, to $118.13 for August, 1947, the highest month.

Commencing with November 1, 1948, after the restaurant operation had been moved, and continuing through the remainder of the three year term, to April 1, 1950, the base rental of $250 per month was tendered by Parrish to the Robertsons and was accepted without objection.

In the motion for judgment filed August 9, 1950, the Robertsons contended, as aforesaid, that by covenant in the lease Parrish was required to operate a general restaurant business in the premises for the full term of the lease. They further contended that in discontinuing the restaurant operation and moving the business to the new location known as Archie's Lobster House and thereafter using Archie's Sea Food Tavern only for the purpose of banquets and parties Parrish was guilty of a breach of this covenant, and that from the time of making the move up to the termination of the lease on May 1, 1950, the Robertsons became and were entitled, in addition to the $250 per month base rental, to ten per cent of the net profits accruing from the operation of both establishments. In addition to the foregoing, the Robertsons contended that in computing the net profits the salaries paid the four partners for services in operating the business were not properly deductible expenses.

Parrish contended that there was no covenant in the lease, either express or implied, requiring him to operate a general restaurant business in the premises during the term; that the lease was prepared by the Robertsons and their attorney and should be strongly construed against them; that there were only small net profits from the operation of the leased premises known as Archie's Sea Food Tavern after the month of October, 1948, and that Parrish was obliged to pay only the base rental of $250 per month, plus such sum as would amount to ten per cent of the net profits.

It was further contended by Parrish that since the restaurant business was moved to Archie's Lobster House without objection, and the base rental of $250 per month was paid to the Robertsons and accepted without complaint or protest, such conduct constituted an acquiescence in the construction placed on the lease by Parrish and the Robertsons were bound by this construction.

The Commissioner found that there was no covenant to operate. In dealing with this subject he reported:

'* * * The plaintiffs (Robertsons) knew beforehand that Parrish was going to move and discontinue the operation of a general restaurant at the premises leased from them. The plaintiffs not only knew and made no protest but acquiesced in such moving. The evidence discloses that in the expectation of both parties the catering to parties and banquets would be more profitable to them. In view of this fact, the plaintiffs would now be estopped to claim that, in so moving, the defendants breached a covenant to continue to operate even if such a covenant were express.'

The Commissioner also found that as the partnership consisted of 'working partners', their salaries were properly deductible before the net profit was figured. He reported: '* * * (The) plaintiffs (Robertsons) expected Parrish to deduct a...

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5 cases
  • Nextel Wip Lease Corp. v. Saunders
    • United States
    • Virginia Supreme Court
    • September 12, 2008
    ...257 Va. 413, 416, 512 S.E.2d 564, 566 (1999). In addition to Scott v. Walker, Nextel and TowerCo rely heavily upon Parrish v. Robertson, 195 Va. 794, 80 S.E.2d 407 (1954), Oakwood Smokeless Coal Corp. v. Meadows, 184 Va. 168, 34 S.E.2d 392 (1945), and Stonegap Colliery Co. v. Kelly, 115 Va.......
  • Weil v. Ann Lewis Shops, Inc.
    • United States
    • Texas Court of Appeals
    • June 22, 1955
    ...premises for that purpose; such a provision is a covenant against a noncomplying use, not a covenant to use.' See also: Parrish v. Robertson, 195 Va. 794, 80 S.E.2d 407; Lippman v. Sears, Roebuck & Co., Cal.App., 271 P.2d 891; William Berland Realty Co. v. Hahn & Co., 26 N.J.Super. 477, 98 ......
  • Landmark Hhh, LLC v. Gi Hwa Park
    • United States
    • Virginia Supreme Court
    • January 16, 2009
    ...the lease. See e.g. Nextel Wip Lease Corp. v. Saunders, 276 Va. 509, 516, 666 S.E.2d 317, 321 (2008) (quoting Parrish v. Robertson, 195 Va. 794, 800, 80 S.E.2d 407, 410 (1954)) (recognizing the principle that a landlord has "the power of providing expressly in his favor" when drafting a lea......
  • Davis v. Wickline
    • United States
    • Virginia Supreme Court
    • April 27, 1964
    ...period of time Wickline moved his operation to a new location but continued to pay the monthly rental as agreed. In Parrish v. Robertson, 195 Va. 794, 800, 80 S.E.2d 407, 410 the lessor entered into a written lease with the lessee whereby a building which was being constructed was leased to......
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