Plaza Amusement Co. v. Rothenberg

CourtUnited States State Supreme Court of Mississippi
Citation159 Miss. 800,131 So. 350
Decision Date15 December 1930
Docket Number28348

Suggestion Of Error Overruled February 16, 1931.

(In Banc. Suggestion of Error Overruled Feb. 16, 1931.)

1. LANDLORD AND TENANT. Contract for lease of building in Mississippi for theater was governed by Mississippi laws though rental notes were made payable in Louisiana.

A contract for a lease of a building to be used in this state for picture shows and other theatrical purposes to be carried on In this state is governed by the laws of Mississippi although the notes evidencing the indebtedness or obligation of the lessee are payable in the state of Louisiana. M. Levy & Sons et al. v. Jeffords, 141 Miss. 818, 105 So. 1, cited.

2. LANDLORD AND TENANT. Under Mississippi law, there is no implied covenant of lessor to make repairs or that leased premises are suitable for lessee's purpose.

Under the law of Mississippi, lessors in executing a lease, in the absence of express covenant, do not imply a covenant on the part of the lessors to make repairs, nor is there any implied covenant on the part of the lessors that the premises are suitable for the purpose for which the building was leased. Jones v. Millsaps, 71 Miss. 10, 14 So. 440, 23 L. R. A. 155 cited.

3. LANDLORD AND TENANT. Landlord's knowledge of purpose for which tenant is leasing premises does not give rise to implied covenant that premises are fit for that purpose.

There is no implied covenant on the part of a landlord in the leasing of property in this state that the demised premises are fit for the purpose for which they are leased, or for the particular use for which they are intended by the tenant, or that they shall continue fit for the purpose for which they were demised, and this is true although the landlord knows the purpose for which the tenant Is leasing the premises.

4. LANDLORD AND TENANT. Lessees have right to put leased premises in suitable condition for use intended in lease, but must do so at their own expense.

Where a contract of lease is silent on the subject, the lessees have the right to put the premises in suitable condition for the use for which they were intended in the lease, but they must do so, unless there is a covenant to the contrary, at their own expense.

5. LANDLORD AND TENANT. Lessor may interpose no legal obstacle to use of leased property for purpose for which it is leased.

Where property is leased for a particular use, the lessor is bound to interpose no legal obstacle to such use. The purpose for which premises are leased, when recited in the lease followed by actual occupation of the premises, prevents the landlord from committing acts to defeat such purpose.

6. DEEDS. Upon conveyance, law implies grant, of all incidents essential to full enjoyment.

It is a general rule that, upon the conveyance of property, the law implies a grant of all the incidents rightfully belonging to it and which are essential to the full and perfect enjoyment of the property.

7. CONTRACTS. Illegal condition annexed to contract will not void entire contract, if separable.

If an illegal condition is annexed to a contract, it will not void the whole contract, but the illegal part will be treated as void, if separable from the legal provisions.

8. LANDLORD AND TENANT. "Structural change" in building is change which affects substantial portion of premises, appearance, fundamental purpose, or uses of building.

What is, or amounts to, a structural change in a building is not easy of definition. By it is meant such a change as to affect a vital and substantial portion of the premises, or a change of its characteristic appearance, the fundamental purpose of its creation, or the uses contemplated, or a change of such a nature as would affect the realty itself, extraordinary in scope and effect and unusual in expenditure.

9. CONTRACTS. Monopolies. At common law, party may sell out his business with good will and agree not to engage in same line of business in locality; anti-trust laws are only intended to include contracts unlawful at common law or against public policy; agreement of persons leasing building for theater not to engage in picture show business in city during period of lease held valid.

At common law it was not unlawful for a party to sell out his business with his good will and agree not to engage in that line of business in that locality or community. Our anti-trust laws are only intended to include within their provisions contracts which were unlawful at common law, or against public policy. Sivley v. Cramer, 105 Miss. 13, 61 So. 653, cited.


That Conducting of picture theater in building leased for that purpose was prohibited by statute in present condition of building did not relieve lessees from liability to pay rent, where building could be put In suitable condition by lessees at small expense without structural change.

Hon. J. D. FATHEREE, Judge.

APPEAL from circuit court of Lauderdale county, HON. J. D. FATHEREE, Judge.

Action by Levi Rothenberg and others against the Plaza Amusement Company and others. From an adverse judgment, defendants appeal. Affirmed.


Green, Green & Potter, of Jackson, Reily & Parker, J. H. Currie, all of Meridian, and Chas. Rosen, of New Orleans, La., for appellants.

Peremptory instruction asked by appellant should have been given, because, if Mississippi law applicable:

Notes whereon recovery sought void under, (1) statutes of Mississippi, and (2) ordinances of Meridian.

Hemingway's 1927 Code, sections 5267, 5272, 5273, 5277, 5278, 5279; Building Code of City of Meridian.

The building is structually deficient, and violated the statutes in divers particulars delineated, the lease of that so violating the law was void.

Leuthold v. Stickney, 39 L. R. A. (N. S.) 233; Hickey v. Scuitto, 10 C. B. 187; Medoff v. Fisher, 101 A. 471; Hart v. City Theatres Co., 109 N.E. 497; Bebb v. Jordan. 189 Pa. 553; Nave v. McCrane, 19 Idaho 111, 113 P. 82; Progress Amusement Co. v. Naker, 179 P. 81; Manvell v. Weaver, 53 Wash. 408; Gerner v. Church, 43 Nebr. 690, 62 N.W. 51; Railroad Stores v. Fabyan & Co., 197 N.Y.S. 815; Howell v. City of Hamburg Co., 165 Cal. 172, 131 P. 130; Heineck v. Grosse, 99 Ill. 441; Romano v. Bruck, 54 N.Y.S. 935; Getty v. Fitch, Cornell & Co., 177 N.Y.S. 393.

Where there are hidden defects in the demised premises leased for public purpose, there is an implied warranty that none such exist.

Borden v. Hirsh, 33 A. L. R. 526; 4 A. L. R. 1453; 13 A. L. R. 818.

To the general rule that the landlord is under no obligation to repair except by force or an express covenant, there is one exception. If a statute makes it the duty of the landlord to repair in any particular, such repairs must be made by him, in the absence of an agreement by the tenant to make them. Thus, where the city charter imposed upon the owner of tenement houses the duty of keeping fire escapes attached thereto in repair, it is the duty of the owner to keep the fire escapes in such repair that they will be suitable for the purpose designed. It is not within the range of ordinary repairs which a tenant, in absence of an agreement to the contrary, is required to make.

Ziebig v. Peiffer Chemical Co., 131 S.W. 132; Des Moines Steel Co. v. Hawkeye Amusement Co., 174 N.W. 704; Goldwyn v. Carroll, 51 App. D. C. 75; Langraf v. Kuh, 188 Ill. 484.

The paramount obligation before the law compelled the doing of the deed and when the deed is providing for the public safety, then those who leave that undone violate the law and in leaving it undone are in pari delicto with those who may also be obligated to perform. But the paramount obligation is on the owner, as it should be, where the law has made it obligatory that the building conform.

Annie v. Brittain, 205 N.W. 129; Farmers & Merchants Bank v. Federal Reserve Bank, 252 U.S. 659.

By the common law a contract founded upon an illegal consideration, or one made against public policy, is void, and no action can be maintained thereon. And where the doing of an act is prohibited by legislative authority, under a penalty, it cannot constitute a consideration to support a contract.

Bohn v. Lowery, 77 Miss. 424, 27 So. 604; Langton v. Hughes, 1 Maule & Sel, 593; Bartlet v. Vinor, Carth. 252; Deans v. McLendon, 30 Miss. 343; Rideout v. Mars, 54 So. 802, 99 Miss. 199; Quartette Music Co. v. Haygood, 67 So. 211, 108 Miss. 755; Woodson v. Hopkins, 85 Miss. 171, 37 So. 1000.

Mississippi has taken an advanced position with reference to illegal contracts, and has not tolerated any recovery thereon, when thereby the party seeking so to do would take advantage of either positive law or public policy.

Mitchell v. Campbell, 72 So. 231, 111 Miss. 806; Lavechoia v. Tillman, 76 So. 266, 115 Miss. 288; Menger v. Thompson, 91 So. 40, 128 Miss. 455; Ham v. Wilson, 86 So. 298, 123 Miss. 510; Bellew v. Williams, 109 Miss. 74, 67 So. 849.

If the plaintiff cannot make out his case without proving and relying on the illegal contract, then he must fail. On the other hand, if the illegal contract is a mere incident in plaintiff's case, if plaintiff can make out his case without relying on and proving such contract, then he is entitled to recover, notwithstanding the illegality of the contract.

Dixie Rubber Co. v. Cato, 110 So. 670, 145 Miss. 342.

If any portion of the consideration is illegal then of necessity, the entire contract is void.

Cotton v. McKenzie, 57 Miss. 418.

It is a familiar rule that the lessor of a building is not liable for injuries to the lessee, or others upon the premises in the right of the lessee, resulting from a structural defect existing when the lessee took possession....

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