Seaboard Oil Co. v. Donovan
| Decision Date | 06 June 1930 |
| Citation | 128 So. 821,99 Fla. 1296 |
| Parties | SEABOARD OIL CO. v. DONOVAN et al. |
| Court | Florida Supreme Court |
Commissioners' Decision.
Suit by the Seaboard Oil Company against T. J. Donovan and another. From an order denying a temporary injunction, defendant appeals.
Affirmed and cause remanded.
Appeal from Circuit Court, Hillsborough County; L L. Parks, judge.
Julian Hartridge, of Jacksonville, for appellant.
In the bill of complaint in this case it is alleged that the defendants were in possession of and entitled to possession of certain described lands on which they were conducting a gasoline filling station; that complainant, appellant, and defendants, appellees, entered into an agreement whereby the complainant was to furnish to defendant J. P. Donovan subject to conditions therein named, certain equipment, and the said J. P. Donovan agreed to operate on said premises a gasoline filling station and business of selling gasoline and other petroleum products for a period of four years; that the said J. P. Donovan agreed not to sell or offer for sale or engage in a similar business during said term within 200 feet of said premises, and to purchase from complainant during said period all gasoline and other petroleum products offered for sale on the premises and not to permit to be sold on said premises during said term any such products, except those obtained from and furnished by complainant; that said J. P Donovan was to pay for gasoline purchased at tank wagon prices prevailing and, 'in event of any default by Dealer (J. P. Donovan) under the terms of Dealer's lease of the above premises, Company (complainant) shall have the option and right to assignment of any lease held by Dealer, and to succeed to and enjoy the said premises for the unexpired term and subject to the conditions thereof (paragraph 9)'; that the appellant agreed to supply gasoline to defendant J. P. Donovan and sell it at 'tank wagon prices prevailing.' It is further alleged, in substance, that the complainant performed its part of the contract; that, after making the contract, defendants operated the filling station and sold products of complainant exclusively for a time, but later stopped selling them and removed from the premises the equipment furnished by complainant and replaced same with other equipment; and that, at the time of filing the bill, they were selling on said premises gasoline and other petroleum products obtained from sources other than complainant; and that the damage sustained by complainant is irreparable and of such a character that it cannot be compensated in money.
Complainant prayed for an injunction, both temporary and permanent, restraining the defendants, their servants, agents, employees, licensees, grantees, executors, administrators, and assigns from selling on the said premises any gasoline or other petroleum products, except those obtained from the complainant; and that they be restrained from violation in any way the agreement between complainant and defendants, a copy of which is attached to and made a part of the bill of complaint.
To the agreement is attached the following:
The bill was duly sworn to by an agent of the complainant. The defendants filed seprate answers under oath in which they denied that complainant performed all of its obligations under the said agreement and alleged that complainant had breached its agreement by failing and refusing to sell to defendant J. P. Donovan 'gasoline at tank wagon prices prevailing * * * at the time and place of delivery'; but sold it as a price in excess of the price provided for in the contract. They further denied that the equipment had been removed from the premises, or that they or either of them had sold or were then selling, on said premises, gasoline or other petroleum products obtained from other persons than complainant, or that they or either of them, their servants, agents, or employees, were conducting such a business thereon, or were in possession of the premises. It was further denied that T. J. Donovan operated a filling station as alleged in the bill of complaint. It was alleged in the said answer that T. J. Donovan was the owner of said premises, and that J. P. Donovan was his lessee, all of which was known to the complainant; that J. P. Donovan defaulted in the payment of rent and possession of the premises was delivered to defendant T. J. Donovan, and that in accordance with paragraph 9 of said contract defendant T. J. Donovan notified complainant of said default and offered to allow the complainant to succeed to and enjoy the said premises for the unexpired term of the lease theretofore held by the defendant J. P. Donovan, and subject to the conditions of the lease, but that complainant has refused to occupy said premises under said lease and to pay the rental agreed upon therefor, 'whereupon this defendant (T. J. Donovan) requested the complainant forthwith to remove its equipment from said premises, which complainant has wholly failed to do'; that thereafter defendant T. J. Donovan rented said premises to one B. P. Rock, who, at the time of filing the answer, was in possession of and operating the filling station and selling gasoline and other petroleum products other than those sole by the complainant.
After filing of the answers, the chancellor denied the application made by complainant for a temporary injunction and based his order upon the following findings:
'That the defendant, J. P. Donovan, at the time of the making of the contract set forth in the Bill, occupied the premises described in the Bill as the tenant of the defendant, T. J. Donovan, at an agreed rental of Fifty ($50.00) Dollars per month, but that said defendant, J. P. Donovan, defaulted in the payment of said rent before the institution of this suit and surrendered possession of said premises to the defendant, T. J. Donovan, the owner of the same, and that neither T. J. Donovan nor J. P. Donovan are now operating a filling station or business of selling gasoline and other petroleum products upon the premises described in the Bill, but that upon the default of the defendant, J. P. Donovan, and the payment of rent, as aforesaid, the defendant, T. J. Donovan, offered to permit the complainant to take over said premises under the terms of the lease theretofore existing between said defendants, T. J. Donovan and J. P. Donovan, in accordance with paragraph (9) of the contract set forth in the Bill, but that the complainant refused to accept the same, and that thereafter the said T. J. Donovan rented said premises to a new tenant, not a party to this suit, who is now in possession of said premises and conducting thereon a business of selling gasoline and other petroleum products, obtained from persons other than the complainant.
'Wherefore, the court finds that the defendant, T. J. Donovan, because of the non-payment of rent, as aforesaid, is no longer bound by the restrictions contained in the contract made a part of the Bill of Complaint, and is not acting in violation of any agreements now binding upon him, and that the defendant, J. P. Donovan, has lost possession of said premises, and his rights therein have been terminated.'
From this order the complainant appealed to this Court, and has assigned as error:
1. The making of the order.
2. The denial of the application for temporary injunction.
'3. The court erred in finding as a matter of law under the pleadings that T. J. Donovan was no longer bound by the contract which is attached to and made a part of the bill.
Section 4970(3178), Compiled General Laws of Florida 1927, reads as follows:
'Upon an application for an injunction or other summary order, or upon motion to dissolve the same, either party thereto shall have the right to introduce evidence, and the chancellor shall grant, dissolve or continue the order, or may require security, according to the weight of the evidence.'
The granting or refusing of a temporary...
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