Estes v. Gatliff

• Decision Date: 09 June 1942
• Citation: Estes v. Gatliff, 291 Ky. 93, 163 S.W.2d 273 (Ky. Ct. App. 1942)
• Parties: ESTES v. GATLIFF et al.
• Court: Kentucky Court of Appeals

163 S.W.2d 273

291 Ky. 93

ESTES v. GATLIFF et al.

Court of Appeals of Kentucky

June 9, 1942

Appeal from Circuit Court, Whitley County; Flem D. Sampson, Judge.

Action by J. T. Estes against K. D. Gatliff and others for breach of a lease contract.Upon being required to elect, plaintiff elected to proceed against named defendant, and his petition was dismissed without prejudice as to the other defendants.Named defendant's demurrer to the petition was sustained and petition was dismissed upon plaintiff's failure to plead, and plaintiff appeals from both orders of dismissal.

Appeal dismissed in part and judgment reversed in part.

Joe S Feather and J. B. Johnson, both of Williamsburg, for appellant.

H. C Gillis, T. E. Mahan, and L. O. Siler, all of Williamsburg for appellee.

STANLEY Commissioner.

J. T. Estes sued K. D. Gatliff, Jellico Coal Mining Company and Nancy Marie White for $9,700 damages for breach of contract, a lease.He was required to elect whether he would prosecute the suit against Gatliff or the other defendants.Electing to proceed against Gatliff, his petition was dismissed without prejudice against the other parties.A demurrer to the petition as against Gatliff was sustained.The plaintiff suffered its dismissal by failing to plead further, and has brought an appeal from both orders.

Material portions of the lease, which is dated June 20, 1939, may be thus summarized: The Jellico Coal Mining Company(stated to be the owner) leased a certain parcel of land in the village of Mountain Ash to Estes for ten years for the purpose of constructing a bulk distributing station of gasoline and other petroleum products.Improvements were to be completed within four months.At the expiration of the lease the lessee had the right to remove the improvements and all property placed on the premises by him.The company "now has" a general filling station adjoining the lot called the "Blue Bird Tea Room."The consideration for the lease was an amount equal to 1 cent on each gallon of gasoline sold at the Tea Room station until the bulk station should be completed.Thereafter the rent should be the equivalent of 1 1/4 cent a gallon.It was further provided that Estes had the right to name the brand of gasoline to be sold there.This clause was to be effective against the coal company and "all its assigns, lessees and agents."

On August 17, 1939, Nancy Marie White executed and delivered to Estes a paper which recited that she was the legal owner of the premises described as the "Blue Bird Tea Room," and in consideration of $5 cash and $5 a year thereafter she agreed to the terms of the above contract "in their entirety and in every respect, and do hereby covenant that I am bound by the terms of said contract as is the said Jellico Coal Mining Company."

The petition sets up these contracts and alleges, among other things, that on September 13, 1939, the defendants, Jellico Coal Mining Company and Nancy Marie White, and E. F. White and wife, conveyed the leased premises and the Blue Bird Tea Room property to the defendant Gatliff.At that time the plaintiff was in the open and notorious possession of the premises and engaged in the construction of the bulk station and improvements provided for in the contract, of which the defendant Gatliff had actual notice.The plaintiff did not know and could not by the exercise of ordinary care have known of Gatliff's intention to buy the property.On September 19, 1939, the plaintiff notified the parties that the "Texaco" brand of petroleum products should be sold at the Tea Room filling station.On the same day, it is charged, the defendant Gatliff repudiated the lease; notified the plaintiffhe would not be bound by it; ordered him to desist from further construction of the improvements; notified him to remove all his property from the premises; and forced him to give up possession thereof.Since that time, it is alleged, the defendant has refused to permit plaintiff to have possession of the leased premises and has refused to recognize the agreement relating to the sale of "Texaco" products at the Tea Room filling station.The plaintiff averred that he had fully complied with each and every obligation imposed upon him by the contract up to the time the defendant Gatliff had repudiated it and forced him to vacate the premises.He further alleged that the Jellico Coal Mining Company and Nancy Marie White had breached the implied covenant that he should have the quiet enjoyment of the premises during the term of the lease by having sold the same to Gatliff, knowing that he was plaintiff's competitor and that he would damage and destroy plaintiff's possession.This, it is charged, was a breach of contract and an intentional wrong.

The motion to require the plaintiff to elect was based upon the concept that he was endeavoring to join an action ex delicto against the Coal Company and Miss White with an action ex contract against Gatliff, which is not permissible.Section 83, Civil Code of Practice;Little v. Consolidation Coal Co.,169 Ky. 514, 184 S.W. 873, 874.While the petition does contain some allegations of a tortious nature, it is essentially an action based on the violation of covenants and agreements contained in the lease by all the parties, from which it is alleged plaintiff suffered damages.Cf.Ocean Acc. & Guar. Corp. v. Milford Bank,236 Ky. 457, 33 S.W.2d 312.The pleader was endeavoring to charge that the original lessors had broken the terms of their agreement by selling the property, with the knowledge that the plaintiff's implied rights would be interfered with.But the dismissal of his petition against these two parties was without prejudice.That is not a final judgment from which an...