Quinerly v. Dundee Corp.

• Decision Date: 01 July 1947
• Citation: 31 So.2d 533,159 Fla. 219
• Parties: QUINERLY et al. v. DUNDEE CORPORATION.
• Court: Florida Supreme Court

31 So.2d 533

159 Fla. 219

QUINERLY et al. v. DUNDEE CORPORATION.

Florida Supreme Court

July 1, 1947

Rehearing Denied July 25, 1947.

Appeal from Circuit Court, Dade County; Ross Williams Judge.

Owen W Pittman, of Miami, for appellants.

Bernstein & Hodsdon, of Miami, for appellee.

CHAPMAN, Justice.

Presented on this appeal is a dispute between landlords and tenant as to the meaning of certain language controlling the reconstruction of the Roxie Theater building situated in the City of Miami in the event of its loss or damage by fire. The lease was for a period of ninety-nine years and entered into during the year 1938. The terms of the lease have been observed by the parties without default in the payment of rents. The lease in part provided that in the event of loss or damage by fire the tenant was required to begin the reconstruction of such loss or damage to the building within a four months' period after the fire. On May 13, 1945, the Roxie Theater building was badly damaged by fire, which occurred at a time when our country was at war with other nations and the war measures adopted by the Federal government precluded reconstruction work on such buildings as the Roxie Theater building.

Accordingly the landlords and tenant by agreement amended the fire provision of their original ninety-nine year lease--our entry into the war with other nations was not contemplated by the parties in 1938. The amended portion of the lease applicable to the reconstruction work caused by fire entered into between the parties in the Summer of 1943 is the sole controversy here. The tenant filed suit against the landlords under Section 87.01 et seq., Fla. Stats.1941, F.S.A., and from a decree favorable to it an appeal has been perfected here. The amended portion of the lease applicable to reconstruction work on the Roxie Theater building caused by fire is, viz 'With respect to the lease or leases between us affecting the southerly ninety-five feet of Lots #19 and 20 of Block #122 North of the City of Miami, Florida, and the northerly twenty-five feet of said lots, and with particular reference to the damage by fire which recently occurred to the buildings, we hereby agree with you that notwithstanding the provisions of the lease or leases pertaining to reconstruction of the buildings thereon in the event same were damaged or destroyed by fire or windstorm, and the time such rebuilding must be effected, you may, if you wish because of the present governmental restrictions prohibiting or limiting the erection of new buildings, replace any damaged or destroyed structures with a temporary structure one story in height, or may so repair the damaged structures as to leave a structure of a temporary nature only, one story in height, and we hereby waive the requirements of said lease that you must start any such work within a period of four months after the date of such damage or destruction, and we hereby extend your time to commence such reconstruction or repairs or to commence the erection of such new building as is required under the provisions of the aforesaid lease until one year after the removal of all governmental restrictions prohibiting or limiting the erection of new buildings to contain retail stores or businesses, and agree that you shall have a reasonable time to complete same after the work of construction or repairs has been commenced.'

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