Sharp v. Williams

• Decision Date: 05 December 1939
• Citation: 192 So. 476,141 Fla. 1
• Parties: SHARP v. WILLIAMS.
• Court: Florida Supreme Court

192 So. 476

141 Fla. 1

SHARP v. WILLIAMS.

Florida Supreme Court

December 5, 1939

Rehearing Denied Jan. 2, 1940.

Error to Circuit Court, Duval County; Miles W. Lewis, Judge.

Action for breach of contract by A. B. Williams against F. C. Sharp. To review an adverse judgment, defendant brings error.

Affirmed.

COUNSEL

Milam, McIlvaine & Milam and Harry Katz, all of Jacksonville, for plaintiff in error.

John E Mathews, of Jacksonville, for defendant in error.

OPINION

PER CURIAM.

On July 21, 1938, plaintiff below, A. B. Williams, filed in the Circuit Court of Duval County, Florida, his amended declaration consisting of five counts. The case was submitted to the jury on counts 1, 2 and 3 of the amended declaration. The material allegations of counts 1 and 3 are, viz: On December 14, 1935, F. C. Sharp was a slot machine owner and A. B. Williams was a slot machine operator, and by a written agreement the parties contracted to operate slot machines at 201 Main Street, Jacksonville, Florida, and elsewhere in said city. Sharp, under the terms of the agreement, was to furnish the slot machines and Williams was to pay the rent for the location. The agreement ended September 30, 1936, but a clause thereof provided that the same would be automatically extended for a period of one year from the expiration date thereof. Sharp made a sub-lease to Williams for the premises, which said sub-lease expired on the 31st of May, 1937, the date of the expiration of Sharp's lease. Sharp and Williams were obligated to each other by the written agreement to operate the slot machine business until September 30, 1937, being a period of four months after the expiration of the lease and sub-lease on the building situated at 201 Main Street. The written agreement was not to be breached by either party thereto, but each term was to be faithfully executed by each of them. The owner of the premises was ready, able and willing to renew the lease to Sharp from June 1st to October 1st, 1937, and Williams was ready, able and willing to pay the rentals named; but Sharp refused to take a renewal of the lease in his own name for said period when the owner was ready, able and willing to lease the property to Sharp, provided Williams would sign a release, or to Williams if Sharp would sign a release. Sharp refused or declined to sign and otherwise carry out the terms of his written agreement with Williams and thereby made it impossible for Williams to either obtain a release or continue in the slot machine business, and because of the breach of said agreement Sharp is liable to Williams for damages.

The second count of the amended declaration alleges facts substantially as set forth in the first and third counts supra, with the additional allegation that the defendant acting in bad faith and in violation of his duties to the plaintiff, conspired with one Ed. Bazar and furnished the money wherewith Bazar leased or rented the property for four additional months from the owner, and after the plaintiff was put out of possession the defendant, through Bazar, continued to operate the business.

The written agreement between Sharp and Williams is, viz:

'Articles of Agreement, Between F. C. Sharp hereinafter called Operator and A. B. Williams a corporation) composed of ----- a partnership) ----- and -----, hereinafter called Location Operator, Witnesseth: Whereas, said Operator is the owner of Coin Operated Machines or Devices, and said Location Operator operates a place or places of business at the storeroom or storerooms hereinafter described.

'The term 'he' wherever used hereinafter shall include and refer to a corporation, co-partners, or an individual, as the case may be; the word 'period' wherever used hereinafter shall mean and include the period of time hereinafter specified, as well as any extension or renewal thereof; the word 'storeroom' wherever used hereinafter shall include one or more than one storeroom as the case may be.

'In consideration of the mutual and several promises on the part of the parties hereto hereinafter contained, said Location Operator hereby agrees with said Operator that for and during the period commencing December 14, 1935 and ending September 30, 1936 at midnight he will use, install, and/or operate at the storeroom operated by said Location Operator, to-wit:

2-1 Main Street

401 Main Street

303 West Duval Street

528 Main Street all of said stores being located in Jacksonville Florida.

the coin operated machines and devices of said Operator, exclusively, and of no other person, firm, or corporation, including said Location Operator; that in the operation of said machines and devices he will operate the same in accordance with all reasonable rules and regulations imposed by said Operator, and will not intentionally violate any City, County, State, or Federal Law, Ordinance, or Regulation; except that the Location Operator may operate such marble tables as said Operator cannot or shall not furnish and supply.

'Said Operator agrees with said Location Operator that he will furnish and supply as many coin operated machines and devices at each of said storerooms during said period as each of said storerooms severally shall reasonably require.

'Said Operator further agrees that he will at his expense service and keep in good repair all machines placed by him and kept in said storeroom during said period.

'It is mutually agreed that after first deducting from the proceeds from the machines placed in said storeroom the City, County and State License Fees, the parties hereto shall share and divide equally between themselves the net profits as shall arise from the operation of said machines and devices operated in said storeroom during said period, that is to say, 50% thereof to the Operator, and 50% thereof to the Location Operator; in addition to said 50% to the Location Operator, the Operator will pay the Location Operator Three Hundred ($300.00) Dollars monthly in advance. Said Location Operator agrees that he will exercise reasonable care for the protection of said machines and devices of said Operator, and upon the termination of this agreement, whether by expiration of time, or otherwise, will permit said Operator to peaceably enter and repossess himself of all of his said machines and devices in any of said storerooms.

'This agreement shall be automatically extended for a period of one (1) year from the expiration date hereof, and for and from year to year thereafter, unless either of the parties shall give the other not less than sixteen (16) days notice to the contrary prior to the expiration of the period hereinabove specified, or any of such annual extensions and renewals.

'Executed in duplicate by the parties hereto this 14th day of December, A. D. 1935.'

The defendant on October 14, 1938, filed pleas to counts 1, 2 and 3 of the amended declaration, and the case was submitted to the jury on pleas, viz: (1) defendant denies that the owner of the storeroom had agreed during May, 1937, or prior thereto, to lease said store to the defendant for an additional four months; (2) denies that the owner of the storeroom, during the month of May, 1937, or prior thereto, was willing to lease the same to plaintiff if the defendant would release the owner from any supposed obligation to the defendant by reason of any supposed prior promise or agreement to lease the property to the defendant; (5) the defendant denies that the owner of the store, during the month of May, 1937, agreed to lease the same to defendant for four additional months after May 31, 1937; (6) denies that the owner of the store was willing to lease the same to the plaintiff; (9) defendant denies that he, by or through Ed Bazar, operated the storeroom at 201 Main Street, Jacksonville, in violation of any duties to the plaintiff under the contract sued upon; (11) the defendant denies that the owner agreed to lease the storeroom to the defendant for four months after May 31, 1937; (12) defendant denies that the owner was willing to lease the storeroom to the plaintiff, if the defendant would release the owner from any supposed obligations to the defendant; (13) the defendant denies that the owner of the store, during the month of May, 1937, or prior thereto, agreed to lease said storeroom to the plaintiff, if this defendant would release the owner from any supposed obligation to the defendant for the reason of any supposed prior agreement. The 4th, 10th, and 15th pleas as amended allege it became the obligation of the plaintiff to furnish the storeroom, under the terms of the written agreement sued upon, during the additional four months' period after May 31, 1937, and that plaintiff failed to provide the storeroom; and defendant denies that the failure on the part of the plaintiff to secure said storeroom was due to any supposed agreement between the owner of the store and the defendant for the period of four months after May 31, 1937, and that the defendant refused to take a lease in his own name and refused to release the owner from any obligation for this reason plaintiff breached the contract sued upon, thereby discharging the defendant; (19) that at the expiration of the sublease from the defendant to the plaintiff to the storeroom at 201 Main Street from the 31st of May, 1937, the owner of the storeroom compelled the plaintiff to vacate the same; that plaintiff was not compelled to vacate the property at the expiration of the sub-lease because of any lease or leases between the owner of the store and the defendant, but because the owner of the storeroom was unwilling and refused to lease said storeroom to the plaintiff during the additional four months after May 31, 1937.

On January 6, 1939, a verdict was rendered for the...