Tampa Drug Co. v. West Drug Stores, Inc.
| Decision Date | 17 October 1933 |
| Citation | 150 So. 786,112 Fla. 331 |
| Parties | TAMPA DRUG CO. et al. v. WEST DRUG STORES, Inc. |
| Court | Florida Supreme Court |
Rehearing Denied Nov. 15, 1933.
Suit by the West Drug Stores, Inc., against the Tampa Drug Company and another. From a final decree for complainant, defendants appeal.
Reversed and remanded.
On Rehearing. Appeal from Circuit Court Hillsborough County; F. M. Robles, judge.
Bivens & Huggins, of Tampa, for appellants.
J. C Davant, of Clearwater, and James F. Sikes, of St. Petersburg for appellee.
The appeal here is from a final decree in favor of the complainant in the court below, the appellee here, against the defendants in the court below, appellants here, which decree was, in part, as follows:
'It is ordered, adjudged and decreed that that certain lease made and executed on the 21st day of January, 1929, by and between E. W. Wiggins as lessor and the Bank of Plant City, a banking corporation, and the Tampa Drug Company, a corporation under the laws of the State of Florida, which said lease appears of record in the public records of Hillsborough County, Florida, in Book 880 at page 143, was taken by said Bank of Plant City and Tampa Drug Company for the use and benefit of the Hillsborough Pharmacy, a corporation.'
The bill of complaint alleged:
'Complainant further shows unto the Court that the said lease was made, executed and delivered to the said lessees therein named for the use and benefit of the said Hillsboro Pharmacy Inc., and for the sole and only purpose of providing a location for the conduct of said business and that the right to occupy said premises by said lease together with all rights and privileges therein granted were adjudicated by the United States District Court for the Southern District of Florida in the said bankruptcy to be an asset of the said bankrupt and held by said bankrupt Court to pass to the purchaser of the assets of said bankrupt and that at a sale of the assets of said bankrupt on the 22nd day of November, 1929, one Frank E. Cooper, as Trustee for said bankrupt under the direction of said bankrupt court, offered for sale the assets of said bankrupt, including the said lease and the rights and interests thereby granted to the highest and best bidder and upon said sale one John R. West, Jr., bidding for and as agent of West Realty Company, a corporation, offered, the sum of $5,075.00 and purchased all of said assets including the rights and privileges under said lease for said sum and became the purchaser of all of the assets of said bankrupt and paid therefor the sum of $5,075.00, which said sum was offered for the merchandise, stock of goods and fixtures and with all rights and privileges under said lease including the right of present occupancy thereof and the right of renewal under the terms of said lease which said sum would not have been offered or bid for said property without the said rights under said lease which by reason of providing a continuing location for an established business was of especial value to the said bidder and on the said 22nd day of November, 1929, said sum was paid to the said Trustee in bankruptcy, who, on said date, made, executed and delivered to the said West Realty Company, Inc., the receipt of the said Trustee for said sum, a copy of which receipt is hereto attached and marked Exhibit 'B' and made a part of this bill and on said date delivered to the said West Realty Company, Inc., all of the assets of said bankrupt including a stock of drugs and fixtures and all equipment located upon the premises hereinbefore described, and possession of said premises under said lease and on said date the said West Realty Company, Inc., went into possession thereof and opened and commenced conducting a drug business at said location and upon said premises, using the trade name, Hillsboro Pharmacy as a matter of convenience as same was established at said location until the 3rd day of January, 1930, upon which date the said West Realty Company sold all of said property to the complainant herein and from said date, the 3rd day of January, 1930, until this date the said complainant has continued to occupy said premises and to conduct therein a retail drug business using as a trade name the name Hillsboro Pharmacy, and said complainant is now occupying and using said premises as a retail drug store and conducting on said premises a drug business.'
Exhibit B, referred to in the foregoing allegation, is as follows:
'In the Matter of Hillsborough Pharmacy, Inc., Bankrupt.
'Received of West Realty Company, Inc., the sum of $5,075.00 in the form of one check, dated Nov. 22, 1929, drawn on the Bank of Commerce and Trust Company of Tarpon Springs, Florida, for $3321.00, and one check dated November 22, 1929, on Bank of Commerce and Trust Company of Tarpon Springs for $1754.00, a total of $5075.00, the same being the total purchase price of all stock and fixtures of the above bankrupt estate, together with all accounts receiveable, located in the store of the bankrupt at Plant City, Florida, together with all of those certain rights and interest in and to a certain lease, the terms and conditions of which will more fully appear from the stipulation entered into by and between the trustee and the holders of the said lease, fully set forth in the Minutes of the creditors' meeting duly held before Hon. H. P. Baya, Referee in Bankruptcy at Tampa, Florida, on the 22nd day of November, A. D. 1929 at 2 P. M. Dated at Tampa, Florida, this 22nd day of November, A. D. 1929.'
The lease referred to was from E. W. Wiggins, lessor, and Bank of Plant City, a banking corporation under the laws of Florida, and the Tampa Drug Company, a corporation under the laws of the state of Florida, lessees, and it was stipulated that the terms 'lessor' and 'lessees' should include legal representatives and assigns of the respective parties wherever the context so requires or admits.
The property leased was 'one store room on the ground floor fronting at #122 E. Reynolds Street, located in the Lee Building, (next door to U.S. Post Office), City of Plant City, County of Hillsborough and State of Florida.'
The lease contained the following clauses:
'To have and to hold the said premises unto the said lessees from the date hereof to and including December 31, 1931, the said lessees yielding and paying to the lessor as rent for said premises the sum of $125.00 per month, payable in advance beginning with the 1st day of February, 1929.
'This lease is made subject to month to month tenancy of the Hillsboro Pharmacy, Inc., a corporation under the laws of the State of Florida, provided, however, that the said lessees may require attornment by the said Hillsboro Pharmacy, Inc., a corporation under the laws of the State of Florida, after which the said Hillsboro Pharmacy, Inc., a corporation under the laws of the State of Florida, shall become the tenant from month to month of the said lessees herein named and subject to all duties and liabilities imposed by law upon it as such. And provided further that the lessees herein named may sub-lease the above described premises from time to time during the term of this lease without the consent of the lessor. The lessor hereby covenants that the said Hillsboro Pharmacy Inc. is indebted to him for past due rental as follows:
1929, .............................
125.00
--------
Total ..........................
$375.00.
'The lessor further covenants that the said sum of $375.00 is the correct aggregate amount of the past due and unpaid rents up to and including January 31, 1929, and that there are no off-sets, counter claims or legal defenses against the same or any part thereof.'
And then the lease contained the following clause:
'It is further...
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