Weil v. Ann Lewis Shops, Inc.

• Decision Date: 22 June 1955
• Docket Number: No. 12816,12816
• Citation: 281 S.W.2d 651
• Parties: Cecile R. WEIL et vir, Appellants, v. ANN LEWIS SHOPS, Inc., Appellee.
• Court: Texas Court of Appeals

Page 651

281 S.W.2d 651

Cecile R. WEIL et vir, Appellants, v. ANN LEWIS SHOPS, Inc., Appellee.

No. 12816.

Court of Civil Appeals of Texas, San Antonio.

June 22, 1955.

Rehearing Denied Sept. 7, 1955.

Lang, Byrd, Cross & Ladon, San Antonio, Godbold & Hobbs, Montgomery, Ala., for appellant.

Brewer, Matthews, Nowlin & Macfarlane, Lionel R. Fuller, San Antonio, for appellee.

W. O. MURRAY, Chief Justice.

This suit was instituted by Cecile R. Weil, joined pro forma by her husband, Leonel Weil, against Ann Lewis Shops, Inc., a corporation created under and by virtue of the laws of the State of Delaware and having its principal place of business in the City of New York. The controversy grew out of a lease contract whereby plaintiffs leased to defendant certain property located in the City of Montgomery, Alabama, more particularly described as 'Number 3 Court Square, approximately 22 1/2 by 150 feet, grade floor, and approximately 22 1/2 X 60 feet, second floor.' The occupancy and use was to be for the conducting of a retail store for the sale of 'Ladies', Misses' and Children's ready to wear and accessories and not otherwise.' The contract called for a guaranteed minimum rental of $650 per month, and in addition thereto the difference between such guaranteed rental and 5% on the gross receipts of the business conducted in the demised premises. The contract was executed July 24, 1946; the occupancy was to begin on October 1, 1948, and was to continue for a period of 15 years, expiring September 30, 1963. By subsequent agreement the time for the beginning of the lease was changed to January 1, 1949. The defendant never occupied the premises and never conducted a business therein.

The trial court submitted some phases of the case to a jury, but, upon motion for judgment notwithstanding the verdict, entered judgment denying the plaintiffs any recovery based on percentage rentals, and Cecile R. Weil and Leonel Weil have prosecuted this appeal.

Appellants' first contention is that the court erred in not rendering judgment on the verdict and thereby awarding to appellants percentage rentals in addition to the minimum guaranteed rental of $650 per month, because the lease contract expressly provided that appellee should occupy and use the demised premises for the purpose of conducting a retail store for the sale of 'Ladies', Misses' and Children's ready to wear and accessories.' In this connection, it might be well to here state that the demised premises were not occupied by anyone for a period of 23 months, beginning on January 1, 1949, and ending on December 1, 1950. During this period appellee paid the minimum guaranteed rental of $650 per month for 13 months and thereafter did not pay anything. The jury found, in effect, by their answer to Special Issue No. 2, that if appellee had occupied the premises and had conducted the business described in the lease, it would have done a gross business of $494,906 during this period. By simple calculation, 5% of this amount would be $24,745.30, and after deducting the $8,450 theretofore paid by appellee, there would be a balance of $16,295 due by appellee for this period.

In answer to Special Issue No. 1, the jury found, in effect, that both appellants and appellee intended at the time the lease was executed that appellee would be obligated to use and occupy the demised premises as a ladies' ready-to-wear store. This issue and the answer thereto were immaterial. The question here presented is whether the lease contract expressly, or by necessary implication, provided that appellee would occupy and use the demised premises for the purposes stated in the contract. The lease contract is written in plain, clear and unambiguous language, and therefore its construction is a question to be decided by the court and not by the jury. 10 Tex.Jur. 329, § 188. The court, in rendering judgment herein, was not bound by the finding of the jury in answer to Special Issue No. 1, to the effect that the parties intended that appellee should occupy and use the premises as a retail store for the sale of ladies' ready-to-wear. The following annotation is found in Vol. 46, A.L.R. p. 1134:

'Apart from the question of liability for waste, it seems that the tenant is under no obligation, in the absence of specific provision therefor, to occupy or use, or continue to use, the leased premises, even though one of the parties, or both, expected and intended that they would be used for the particular purpose to which they seemed to be adapted or constructed. Goldberg v. Pearl, 1923, 306 Ill. 436, 138 N.E. 141; Moore v. Guardian Trust Co., 1903, 173 Mo. 218, 73 S.W. 143; McCormick v. Stephany, 1898, 57 N.J.Eq. 257, 41 A. 840, modified on other grounds in, 1901, 61 N.J.Eq. 208, 48 A. 25; Burdick v. Fuller, 1921, 199 App.Civ. 94, 191 N.Y.S. 442; Rahr's Sons Co. v. Buckley, 1915, 159 Wis. 589, 150 N.W. 994; Dougan v. H. J. Grell Co., 1921, 174 Wis. 17, 182 N.W. 350.' (Italics ours.)

Appellants contend that the written lease expressly provided that appellee should occupy and use the demised premises for a ladies' ready-to-wear store. In support of this contention they rely upon some ten provisions of the lease. They first present the provision of the lease which states that the premises are rented 'for occupation and use as Ladies', Misses' and Children's ready-to-wear and accessories and not otherwise.' Clauses similar to this one have been construed in many cases, and it has never been held to be an agreement to occupy and use the demised premises, but only to restrict the purposes for which the premises may be used. Palm v. Mortgage Inv. Co., Tex.Civ.App., 229 S.W.2d 869. In Dickey v. Philadelphia Minit-Man Corp., 377 Pa. 549, 105 A.2d 580, 581, the Court said:

'Generally speaking, a provision in a lease that the premises are to be used only for a certain prescribed purpose imports no obligation on the part of the lessee to use or continue to use the premises for that purpose; such a provision is a covenant against a noncomplying use, not a covenant to use.'

See also: Parrish v. Robertson, 195 Va. 794, 80 S.E.2d 407; Lippman v. Sears, Roebuck & Co., Cal.App., 271 P.2d 891; William Berland Realty Co. v. Hahn & Co., 26 N.J.Super. 477, 98 A.2d 124; Harden v. Conwell, 205 Ala. 191, 87 So. 673; Percoff v. Solomon, 259 Ala. 482, 67 So.2d 31, 38 A.L.R.2d 1100.

Appellants further contend that, when the lease is considered as a whole and especially in connection with some nine other provisions thereof, which appellants discussed more or less in detail, an expressed intention that appellee would occupy and use the premises is shown. It occurs to us that this argument is more in favor of an implied covenant to use and occupy than an expressed on. We have read the entire lease and fail to find any expressed provision that appellee is obligated to occupy and use the premises, and appellants have not pointed out to us any such expressed provision. It seems that if there were such an...