Sander v. Piggly Wiggly Stores
| Decision Date | 08 February 1936 |
| Parties | SANDER v. PIGGLY WIGGLY STORES, Inc., et al. |
| Court | Tennessee Court of Appeals |
Certiorari Denied by Supreme Court July 3, 1936.
Appeal from Chancery Court, Davidson County; R. B. C. Howell Chancellor.
Suit by Bert P. Sander against Piggly Wiggly Stores, Incorporated the Southern Stores Corporation, and another. From a decree for complainant, last-named defendant appeals.
Affirmed.
Joseph W. Gray and Frank Wade, both of Nashville, and Walter O Marshburn, of Miami, Fla., for appellant Southern Stores Corporation.
W. E Norvell, Jr., and Norman R. Minick, both of Nashville, and Thomas, Thomas & Folts, of Chattanooga, for appellee Sander.
This is a suit to enforce a rental or lease contract, covering a term of years, against the assignees, who had assumed the covenants of same.
The original bill was filed by Bert P. Sander, on October 28, 1931, against the original lessee, the Piggly Wiggly Stores, Inc.; its assignee, the Southern Stores Corporation; and its assignee, the Winn & Campion Grocery Company, to collect $2,700 rent.
The bill alleged that complainant Sander, in February, 1923, leased to Piggly Wiggly Stores, Inc., a storehouse in Hamilton county, Tenn., for a period of 5 years from October, 1922, at an agreed yearly rental of $1,200, payable in monthly installments of $100; that the lease provided that the lessee should have the option to extend the lease for a further period of five years from the expiration of the initial term, upon giving written notice of its election so to do at least 30 days before the expiration of the term; that Piggy Wiggly Stores, Inc., went into possession under the lease, and, in accordance with the option provided in the lease, elected to renew same for an additional 5-year period, by which the lease was extended to and until the 31st day of October, 1932.
The bill further alleged that the Piggly Wiggly Stores, Inc., in 1928, assigned its interest in said lease to the Southern Stores Corporation, which company assumed the liabilities and "became bound by the covenants contained in said lease and became obligated to pay the rent provided by the terms of said lease, but said assignment did not release the defendant, Piggly Wiggly Stores, Inc., from its obligations to perform and carry out all of the covenants in said lease, and to pay the rent provided thereby."
It was further alleged that the Southern Stores Corporation later likewise assigned said lease to the Winn & Campion Grocery Company, which company assumed the lease, but said assignment did not release the Piggly Wiggly Stores, Inc., or the Southern Stores Corporation from their obligations; that the Winn & Campion Grocery Company several months later removed from said premises and refused to pay further rent after August 1, 1930; that the lease expired October 31, 1932; and that at the contract rate of $100 per month defendants are indebted to complainant Sander in the sum of $2,700, and that all three of said parties are accordingly bound by the terms of said lease and liable to the complainant for said sum.
Piggly Wiggly Stores, Inc., a Virginia corporation, was not served with process, and decree was entered dismissing the bill against it.
The Winn & Campion Grocery Company answered and denied that Piggly Wiggly Stores, Inc., renewed said lease, and alleged that its tenancy therefore became a tenancy by the month. It denied that Piggly Wiggly Stores, Inc., made any assignment of its interest in said lease, charging that such an assignment would have to be in writing to be valid, under the statute of frauds, and that no written assignment was made.
It further denied that the Southern Stores Corporation assigned said lease or said alleged extended lease to it, and denied that it assumed the same. It alleged that on June 1, 1930, it purchased a stock of merchandise and fixtures from said Southern Stores Corporation and used said storeroom for two months until it could dispose of and remove said merchandise. It alleged that it paid the rent for June and July, 1930, and vacated said premises at the end of July. It further alleged that it purchased said stock of goods not for the purpose of continuing in the mercantile business, but to close out same.
The Southern Stores Corporation answered and denied that Piggly Wiggly Stores, Inc., renewed said lease, and that said corporation assigned said alleged extended lease to it. It charged that said assignment must be in writing, and no written assignment was made. It denied that it assumed said lease, and denied that it assigned said alleged extended lease to Winn & Campion Grocery Company, and specially pleaded the statute of frauds.
The chancellor found that the Piggly Wiggly Stores, Inc., gave due notice in writing to the said Bert P. Sander of the intention of said lessee to extend, and so did extend, said lease for another 5-year period, beginning November 1, 1927, and extending to October 31, 1932; that in January, 1928, said Piggly Wiggly Stores, Inc., assigned its interest in said lease to the Southern Stores Corporation, and that said Southern Stores Corporation assumed the liabilities and became bound by the covenants contained in the said lease agreement for and until the expiration of the said term of said lease as so extended, to wit, October 31, 1932, and the said Southern Stores Corporation actually occupied said premises from that time until on or about May 1, 1930; and that during said occupancy of the premises by the said Southern Stores Corporation it carried out the terms and provisions of the lease, and as appears not only by letters or papers signed by its officers and agents, but likewise by its conduct and actions, fully assumed all of the provisions of the lease for the remainder of said term, but that on or about May 1, 1930, the said Southern Stores Corporation sold or transferred its business in said store and the obligations under its lease to the defendant, Winn & Campion Grocery Company, which agreed to become bound by the terms of which lease agreement and which occupied the said premises as a store and operated its business which it had purchased and taken over from Southern Stores Corporation in said premises to and including the month of July, 1930, and during such period of occupancy by the said Winn & Campion Grocery Company paid to the complainant the stipulated monthly rent up to and including the month of July, 1930, but that the proof fails to show that Winn & Campion Grocery Company executed any memoranda signed by it or in its behalf for the assumption of the lease for the remainder of the term of the lease, and therefore that said Winn & Campion Grocery Company is only liable for rent for a period of one year from the date of its assumption, to wit, for one year from May 1, 1930, less any payments made by it or credits to which it is entitled, and that said Winn & Campion Grocery Company moved out of the premises on or about August 1, 1930, and since said date neither the Winn & Campion Grocery Company nor Southern Stores Corporation nor Piggly Wiggly Stores, Inc., nor any one else has paid, or caused to be paid, to the complainant the rent provided by the terms of the lease agreement from August, 1930, to and including October, 1932, or a period of 2 years and 3 months; and that the complainant made all reasonable efforts to relet the premises so as to minimize his damages, but that he was only able to do so to the extent of renting a portion for a few months upon which he collected the sum of $150, which should be applied as a credit on any amount otherwise owing complainant by said Southern Stores Corporation and/or Winn & Campion Grocery Company; and that Southern Stores Corporation is justly indebted and liable to the complainant for damages sustained by the complainant, or for rent, from August 1, 1930, to and including October, 1932, at the rate of $100 per month, or a total of $2,700, less said credit of $150; and that the defendant Winn & Campion Grocery Company is justly indebted and liable to the complainant, as aforesaid, as damages, etc., or for rent from August, 1930, to and including the month of April, 1931, at the said stipulated rate of $100 per month, less the above-mentioned credit, or, to wit, $900, less said credit of $150, or a total sum of $750.
Decree was entered that complainant, Bert P. Sander, have and recover from the defendant Southern Stores Corporation the sum of $2,550 and costs of the cause; and have and recover of the defendant Winn & Campion Grocery Company the sum of $750 and costs of the cause; but that the actual collections from said defendants should not exceed the total sum of $2,550 and costs.
The defendants, the Southern Stores Corporation and the Winn & Campion Grocery Company, excepted to said decree, but only the Southern Stores Corporation perfected an appeal to this court, and it has assigned errors as follows:
(1) The court erred in finding that said lease contract as extended had been legally and properly assigned to said Southern Stores Corporation, as no assignment thereof in writing was shown to have been made, so as to prevent the prohibition of the statute of frauds and perjuries.
(2) The court erred in finding that the Southern Stores Corporation assumed said lease.
(3) The court erred in holding the Southern Stores Corporation liable for rents from and after May 1, 1930, at which time it sold to Winn & Campion Grocery Company, which company assumed the lease, and Sander accepted Winn & Campion Grocery Company as a tenant.
(4) The court erred in not charging Bert P. Sander with $75 per month in mitigation of damages.
The facts of the case, as shown by the record, are as...
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