Sharlin v. Neighborhood Theatre Inc.

• Decision Date: 28 April 1969
• Citation: 167 S.E.2d 334,209 Va. 718
• Parties: M. H. SHARLIN v. NEIGHBORHOOD THEATRE, INCORPORATED.
• Court: Virginia Supreme Court

Page 334

167 S.E.2d 334

209 Va. 718

M. H. SHARLIN v. NEIGHBORHOOD THEATRE, INCORPORATED.

Supreme Court of Appeals of Virginia.

April 28, 1969.

Thomas J. Harrigan, Arlington, for plaintiff in error.

James H. Simmonds, Arlington, Robert T. Barton, Jr., Richmond, (Gregory U. Evans; Simmonds, Coleburn, Towner & Carman, Arlington, on the brief), for defendant in error.

Before EGGLESTON, C.J. and BUCHANAN, SNEAD, I'ANSON, CARRICO, GORDON, and HARRISON, JJ.

BUCHANAN, Justice.

In 1944 M. H. Sharlin and Neighborhood Theatre, Inc., a Virginia corporation which operated motion picture theatres, entered into an 'agreement and lease' which provided that Sharlin would erect a building on certain property owned by him on Glebe Road, in Arlington county, and would lease the building and some adjoining land to Neighborhood for a period of twenty years for use as a motion picture theatre.

Neighborhood began operating the theatre, under the trade name 'Glebe' theatre, near the end of April 1945, and by supplemental agreement executed by the parties in August 1945, the term of the lease was deemed to have commenced at midnight on April 30, 1945, and was to expire at midnight on April 30, 1965. After negotiations between Sharlin and Neighborhood for renewal of the lease proved fruitless, Neighborhood surrendered the premises to him a day or so before April 30, 1965. In the meantime Sharlin had leased the premises to K-B Threatres, another chain.

Subsequently, Sharlin, plaintiff, by motion for judgment, sought to recover damages from Neighborhood, defendant, for alleged breach of covenants in the lease. He alleged that contrary to the terms of the lease Neighborhood had failed to maintain the building and parking lot in good order and repair and had failed to return the premises to him in the same good order and condition as when delivered. He sought damages in the amount of $37,638.27.

Defendant filed its grounds of defense, in essence averring that it had fully performed the terms of the lease and denying that it was indebted to plaintiff. Answers by plaintiff to interrogatories filed by defendant developed that plaintiff was seeking damages for the cost of replacing certain items which he claimed defendant had wrongfully removed from the building and for the cost or repairs to the building and parking lot adjacent thereto.

The case was tried without a jury over a period of six days. After hearing much testimony and receiving numerous exhibits, the court found that plaintiff Sharlin was entitled to recover $1,517.24 and subsequently judgment was entered for him in that amount. Sharlin was granted a writ of error and here claims in effect that because of misconstruction by the court of the provisions of the lease, the court granted him inadequate damages.

The 1944 agreement and lease provided that Sharlin would erect a threatre building pursuant to plans and specifications approved by both parties. The building, as constructed by Sharlin, was to include adequate plumbing and heating facilities and ducts for a cooling system. Neighborhood agreed to equip the building for operation as a motion picture threate.

During the construction of the building Neighborhood had installed and paid for theatre seats, projection booth and sound equipment, furniture and carpeting. It removed these items at the end of its term, and Sharlin does not contest its right to do so.

Neighborhood also had installed and paid for various light fixtures in the theatre, including as a motion picture theatre. in the lobby, in the foyer and in the auditorium. It had installed three custom-made attraction panels on the marquee and two lighted 'Glebe' signs atop the marquee. Wiring from the outlets to the fixtures was paid for by Neighborhood. The lessee also decorated the interior of the theatre.

After negotiations between Sharlin and Neighborhood for a renewal of the lease were unsuccessful, and Sharlin had leased the premises to K-B Theatres, Neighborhood attempted to sell to K-B as a 'package' all its fixtures in the theatre except the seats, but no sale was made. Wade Pearson, Neighborhood's district manager, was then instructed to take out what Neighborhood had put in the theatre.

The theatre ceased operation on April 25, 1965, and the following day workmen started removing the contents of the building. Pearson told the electrician to remove all light fixtures, including the 'Exit' lights, except the lights in the ceiling of the auditorium. The electrician testified that he took out the light fixtures and removed the 'Glebe' signs, and that in order to remove the seats quickly he cut the wires to the aisle lights; but he denied cutting the wires in the junction boxes. He did not remove the recessed lights in the underside of the marquee and Pearson did not recall thrse lights being removed.

Sharlin testified that he was in the building shortly after Neighborhood vacated and that all light fixtures except those in the ceiling of the auditorium had been removed. He said that the 'Exit' light fixtures--most of which were recessed in the walls--had been 'ripped' out. The recessed light fixtures in the marquee had been removed.

The electrician who replaced many of the light fixtures for K-B testified that when the aisle lights had been disconnected from the junction boxed the wiring had been cut so short that new wiring was required; that wiring to many of the ceiling fixtures had been cut short.

Among other items of damage, Sharlin sought to recover the replacement and installation costs of the two 'Glebe' signs, the three attraction panels, the light fixtures in the underside of the marquee, the lobby, the foyer and the 'Exit' lights and the cost of various wiring.

Defendant asserts that under the provisions of the lease the light fixtures panels and signs belonged to it, the lessee, and it had the right to remove them.

The paragraph in question provided:

'* * * Lessee agrees to equip said building at Lessee's own cost and expense, with seats, booth equipment, sound equipment, carpets and necessary furniture for the operation of a moving picture theatre, and further agrees at its own expense and as soon as the same may become available, to install the necessary equipment such as motors, compressors and the like, for a cooling system. All such equipment, fixtures or furniture of whatsoever kind, so installed or brought upon the premises by the Lessee, whether or not the same may be affixed to the freehold, shall at all times remain the property of the Lessee, subject only to Lessor's liens for rent as provided by law.'

Plaintiff contends that the word 'such' before 'equipment, fixtures or furniture' in the second sentence modifies all of those words and refers to the items specified in the preceding sentence, that is, seats, booth equipment, sound equipment, carpets, necessary furniture and necessary equipment for a cooling system; that the light fixtures, panels and signs were not mentioned in the first sentence, and therefore Neighborhood had no right to remove these items and plaintiff was entitled to their replacement cost.

The trial court held that the second sentence was not limited by the items enumerated in the first sentence quoted and that under the second sentence Neighborhood owned and had the right to remove the items in contention which it had placed in plaintiff's building. We agree with that holding.

'Such' refers to an object already particularized. It is 'a descriptive and relative word, and refers to the last antecedent, unless the meaning of the sentence would thereby be imparied.' Strawberry, Etc. v. Starbuck, 124 Va. 71, 86, 97 S.E. 362, 367. Its meaning is not to be determined in isolation. The preceding sentence speaks of equipment and necessary furniture. It is followed by 'All such equipment, fixtures or furniture Of whatsoever kind, so installed or brought upon the premises by the Lessee' (italics added). The italicized words broaden the terms of the preceding sentence and show a...