Timmons v. Cropper
| Citation | 172 A.2d 757,40 Del.Ch. 29 |
| Parties | Ernest A. TIMMONS, Plaintiff, v. Edward CROPPER, Defendant. |
| Decision Date | 13 July 1961 |
| Court | Court of Chancery of Delaware |
Robert D. Thompson, Jr., Georgetown, for plaintiff.
John E. Messick of Tunnell & Raysor, Georgetown, for defendant.
SHORT, Vice Chancellor.
On April 14, 1959 plaintiff and defendant entered into the following written agreement:
'Location Agreement'
'This Agreement, made and concluded this 14 day of April, 1959, by and between Ernest A. Timmons of Delmar, Delaware, hereinafter referred to as Timmons and Cropper's of Selbyville, Delaware, hereinafter referred to as Properietor, Witnesseth:
'In consideration of the payment to proprietor by Timmons of the sum of One Dollar it is agreed:
'Proprietor leases unto Timmons appropriate space for the operation of automatic Amusement equipment upon premises located Church & Main St. Proprietor also agrees to furnish electric outlets there-fore and to permit operation of such equipment during usual business hours and under usual conditions without hindrance.
'It is agreed that the following equipment is to be installed:
'All Pin Ball Machine on 50-50 basis.
'All licenses to paid for out machines.
'Proprietor grants unto Timmons the exclusive right to operate automatic Amusement machines upon the premises during the full term hereof, and no other person, persons, or corporations shall have the right to operate the same during the full term hereof, including the Proprietor, nor shall any other commercial Amusement system be operated on said premises during said term.
'Title to all equipment placed by the undersigned, shall at all times be and remain the equipment of Timmons and Proprietor agrees that Timmons may remove the same at anytime during the term hereof.
'In the event of any breach of this agreement by the Proprietor, Timmons shall have the right to enjoin the Proprietor from operating any other equipment in the said premises by an appropriate action in Equity, the Proprietor agreeing that jurisdiction might vest in Equity without his objection and as a cumulative right, it is further agreed that as liquidated damages and not as a penalty, upon such breach, Timmons shall be entitled to and shall, at time of breach, receive from Proprietor a sum equal to the average weekly share of Timmons prior to the said breach, multiplied by the number of weeks remaining in the unexpired term of the agreement. These rights shall be cumulative.
'It is agreed that this agreement shall continue for a period of 1 years from the date hereof and thereafter for an additional period of one year and so on from year to year until written notice of termination be received no less than sixty days prior to the end of any term hereof.
'This agreement shall be binding not only on the parties hereto, but also on their heirs, executors, administrators, successors and assigns and in the event the Proprietor sells his interest in the said premises, that such successor shall be fully bound by the term of this leasehold agreement.
'This contains all the agreements of the parties, there being no other reservations or understandings.
'Parties certify authority to enter into this agreement.
'Ernest A. Timmons L.S.
(Ernest A. Timmons)
Edward Cropper L.S.
Proprietor
Selbyville, Del.
Address'
Plaintiff now seeks an injunction to restrain defendant from placing, or permitting to be placed on defendant's premises any pin ball machines other than plaintiff's a mandatory injunction to compel defendant to remove or cause to be removed from the premises any pin ball machines not owned by plaintiff, and liquidated damages in accordance with the agreement.
On its own motion the Court has raised the question of jurisdiction to hear and determine the cause upon the ground that plaintiff may have an adequate remedy at law.
Plaintiff contends that the relationship created by the agreement is that of landlord and tenant and that the Court should therefore invoke the rule that equity will intervene by injunctive process to restrain the lessor from breach of a covenant binding him not to use or lease other premises which he owns for purposes stipulated in the lease. See 32 Am.Jur. 155. Defendant argues that the agreement creates nothing more than a license in the plaintiff since it neither defines any particular location on defendant's premises for the placing of plaintiff's machines, nor gives to plaintiff exclusive possession of any particular space.
'A lease is a contract by which one person divests himself of, and another takes the possession of lands * * * for a term, whether long or short.' Woods on Landlord and Tenant, 203, cited with approval by Judge Rodney in Lewes Sand Co. v. Graves, 1 Terry 189, 8 A.2d 21. A license with respect to real property is 'a privilege to go on the premises for a certain purpose, as, for example, the purpose specified in the instrument creating the license; it does not operate to confer on, or vest in, the licensee any title, interest, or estate in such property.' 53 C.J.S. Licenses § 84, p. 810 '[T]he principal test for determining whether the relationship created is that of landlord and tenant rather than that of licensor and licensee is whether the contract confers exclusive possession of the premises as against all the world, including the owner, and a mere permission to use land, dominion over it remaining in the owner and no interest in, or exclusive possession of, it being given, is but a license.' 51 C.J.S. Landlord and Tenant § 6, p. 513.
In Wandell v. Ross, 241 Mo.App. 1189, 245 S.W.2d 689, 691, the instrument involved was styled 'Store Lease', contained technical words of demise, provided for payment of 'rent', and recited that 'said Lessor hereby leases to said Lessee the hat checking space to the front and left of front entrance doors, the premises, located at 600 East 6th Street, Kansas City, Missouri, to be used for the purpose of hat checking service.' The Court, observing that no exclusive possession was conferred by the agreement, that the space described was indefinite and was solely for the purpose of carrying on the concession, and that plaintiffs had only limited access to the building, held that the contract created a mere license. Similarly, in Wash-O-Matic Laundry Co. v. 621 Lefferts Ave. Corp., 191 Misc. 884, 82 N.Y.S.2d 572, an agreement purporting to 'lease' certain laundry space to plaintiff, which was engaged in the...
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...the issue has been raised by the parties. duPont v. duPont, supra; Wife v. Husband, Del.Ch., 285 A.2d 824 (1971); Timmons v. Cropper, Del.Ch., 172 A.2d 757 (1961). But see McMahon v. New Castle Associates, Del.Ch., 532 A.2d 601 (1987) (court to determine jurisdiction, upon proper motion mad......
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...omitted).4 El Paso Natural Gas Co. v. Transamerican Natural Gas Corp., Del.Supr., 669 A.2d 36, 39 (1995) (quoting Timmons v. Cropper, Del. Ch., 172 A.2d 757, 760 (1961)); Bruno v. Western Pacific R.R. Co., Del. Ch., 498 A.2d 171, 172 (1985) (citations omitted), aff'd, Del.Supr., 508 A.2d 72......
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...whereby one person divests himself of and another party takes possession of lands for a term, whether long or short. Timmons v. Cropper, 40 Del.Ch. 29, 172 A.2d 757 (1961). The law of landlord-tenant, therefore, does not apply to the lease of a motor vehicle. Rather, in the view of the Cour......
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