Vanover v. Justice

• Decision Date: 21 May 1918
• Citation: 180 Ky. 632,203 S.W. 321
• Parties: VANOVER v. JUSTICE.
• Court: Kentucky Court of Appeals

203 S.W. 321

180 Ky. 632

VANOVER v. JUSTICE.

Court of Appeals of Kentucky.

May 21, 1918

Appeal from Circuit Court, Pike County.

Action by J. F. Justice against Eliza Vanover. From a judgment for plaintiff, defendant appeals. Affirmed.

Roscoe Vanover, E. J. Picklesimer, and Cline & Steele, all of Pikeville, for appellee.

CARROLL J.

In January, 1912, J. F. Justice, the appellee, entered into a written contract with Eliza Vanover, the appellant, by which he leased from her for a period of three years, with the privilege of extending the lease for three years, a vacant lot and a store building; his purpose being to conduct a general merchandise store in the leased building, and a building that he contemplated putting on the vacant lot. After this it appears that Justice learned that Mrs. Vanover was about to lease some adjacent property to parties who intended to conduct in it a general store in competition with him, and in May, 1912, he leased from Mrs. Vanover a vacant lot adjoining the lot he had leased in January for the purpose of erecting a building on the lot. The lease of this lot ran for five years, with the privilege of two more years. At the expiration of the January lease and the May lease any buildings erected on the leased premises were to revert to Mrs. Vanover. In the May lease it was stipulated that "First party, Mrs. Vanover, agrees to not let any other person put up in opposition to second party, J. F Justice." The purpose of inserting this clause in the lease was to prevent Mrs. Vanover from leasing other adjacent lots that she owned to persons for the purpose of operating a store in competition with the store that Justice intended to conduct in the buildings on the lots leased by him. It will be observed that the quoted language is not accurately expressed, but it is conceded that it was the intention of both parties that this clause should be a prohibition against Mrs. Vanover leasing her adjacent property to any person for the purpose of conducting a store in competition with Justice, and it is further admitted by Justice that his sole purpose in entering into the May contract was in order that he might have inserted therein this prohibitive clause to prevent competition in the business he proposed to engage in.

Shortly after this, and in violation of this clause in her contract Mrs. Vanover leased for a term of years to one Wright a lot adjacent to the lot leased to Justice for the purpose of enabling Wright to erect a building on the lot and conduct a store therein in competition with Justice. Nor is there any dispute about the fact that Wright, soon after this lease was entered into, did erect a building on the leased lot and conduct therein a store in competition with Justice. After this Justice brought this suit against Mrs. Vanover to recover damages and for various breaches of her contracts made in January and May, including the breach committed in leasing the lot to Wright. Waiving preliminary matters, there was an answer controverting the petition and asking, in a counterclaim, damages in the sum of $2,000. On a trial of the issues there was a verdict and judgment, accordingly, in favor of Justice for $350, and Mrs. Vanover appeals.

On the trial of the case the court instructed the jury that:

"Under the contract, of date May 16, 1912, the defendant agreed to not permit any person other than plaintiff to put up or engage in business in opposition to plaintiff on defendant's lands during the term of said lease; and if the jury should believe and find from the evidence that the defendant in violation of this provision of the contract leased a portion of her said premises to other persons who engaged in the mercantile business on defendant's premises and in opposition to plaintiff, and carried the same line of goods as plaintiff carried, they should find for plaintiff on this item such a sum in damages as they may believe from the evidence will fairly compensate him for the loss sustained, if anything, by reason of said breach of the contract."

And the...