78 Fla. 240 | Fla. | 1919
— Suit was brought by plaintiff in error upon an alleged breach of a covenant to pay rent by defendants in error upon certain premises located in the City of Jacksonville leased and demised to them by plaintiff in error. The lease which is made a part of the declaration is for a term of three (3) years from and after the 1st day of April, 1913, up to and including the 31st day of March, 1916, and contains the following provision describing the property let and reciting the use to which it was to be put by the lessees:
“That the said lessor doth hereby lease and remise unto said lessees, all and singular, that certain part or portion of the building of the lessor situate on the north side of East Bay Street, stores known as Numbers 341-343, 345 East Bay Street, measuring to-wit: sixty (60) feet wide by ninety-five (95) feet deep, together with the floors immediately above said stores, for the purpose of carry -*242 ing on a wholesale and retail business, both or either, and other storage purposes. Store known as Number 345 is to be used on the first floor only for a first class' barroom for white people. The adjoining store Number 343 is to be used for a bar-room for colored people, with solid wall at least sixteen (16) feet from rear of the building; and furthermore this store (number 343) will have no toilet privileges; and should this colored bar, in the judgment of the owner of the building, be a detriment in any way, the lessees agree at the end of twelve (12) months to close this colored bar and use this space in connection with their wholesale business.”
There is in the lease a covenant that the lessees would “not use or permit the said premises to be used for any illegal or improper'purposes.”
There were pleas by each defendant denying that the deed sued on was its deed. Each defendant also filed a plea called a sixth or additional plea in which, after admitting the lease of the premises described in the declaration, and the occupancy and use of such premises under the terms of the lease until the first day of October, 1915, it is averred that: “it was expressly agreed in and by said lease or agreement between the parties that the store known as number 345 should be used on the first floor only for first-class bar-room for white people, and that by the terms of Chapter 6860,. Laws of Florida, approved the 5th day of May, 1915, and enacted subsequent to the execution of said lease or agreement, the operation of a barroom in the State of Florida, subsequent to the 30th day of September*, 1915, was rendered illegal, so that the defendants wei*e thereby precluded from using the said store at 345 East Bay Street for the purpose to which its use had been expressly restricted under the
There was a demurrer to this plea which was overruled.
Pleas called additional eighth pleas averring the payment of rent for the month of September, 1915, were filed by the defendants.
Issue was joined upon the first and eighth pleas and to the sixth, or additional plea there was a replication in which it was denied that the stores and rooms described in the lease were so located with respect to each other that the occupancy of the entire leased premises was required for the succsssful opration of any business which the defendants desired to conduct therein.
There was a directed verdict for the defendants.
Prior to the taking effect of the statute referred to in the pleadings the lessees gave notice to the lessor that they would upon the taking effect of this statute relinquish possession of the leased premises and surrender up the possession thereof to the lessor on the night of September 30th, 1915, the day upon which the act took effect upon the theory and claim, made by them,, that the enactment and taking effect of this statute operated to terminate the lease under which they held.
It was proved at the trial that the lessees vacated the leased premises prior to October 1st, 1915. The first plea was not sustained, but was disproved by the production and reception in evidence of the original lease sued on. The eighth plea was proved by the introduction in evidence of the paid check of the lessee, Charles Blum Company, to the lessor for the amount due for rent for the month of September.
The question therefore which is presented for our determination is whether the trial court erred in overruling plaintiff’s demurrer to defendants’ sixth or additional pleas and in directing a verdict for the defendants upon the issues made by such pleas and plaintiff’s replication thereto, and the evidence offered upon this issue by the
The contention is made by the lessees that this statute makes it unlawful for them to conduct a bar room upon the leased premises. The term “bar room” has acquired a well understood meaning. It may be defined as a place where intoxicating liquors are sold to be drunk on the premises where sold. Beiser v. State, 79 Ga. 326, 4 S. E. Rep. 257; Mayor, etc., of Town of Leesburg v. Putnam, 103 Ga. 110, 29 S. E. Rep. 602; In re Schneider, 11 Ore. 288, 8 Pac. Rep. 289; City of Spokane v. Baughman, 54 Wash. 315, 103 Pac. Rep. 14. In the case of Beiser v. State, supra, the Supreme Court of Georgia defines a “bar room” as “a place for the sale of intoxicating liquors, by retail, for consumption at the place of sale.” So defined it is clear that upon the enactment of this statute the operation of a bar room in this State became unlawful.
This brings us to a consideration of the lease itself. If its terms are such as to show that the use of the leased premises as a bar room was permissive the enactment of the statute under consideration had no effect upon the lease because while the lessees could not thereafter use the building as a place in which to conduct a bar room, they were at liberty to use such premises for some lawful purpose. But, on the other hand, if the terms of the lease are restrictive and, under its provisions such prem
Similar questions have frequently been before the courts in this country in recent years and in a note to the case of Stratford v. Seattle Brewing & Malting Co., supra, in L. R. A. 1917C, 935, it is said: “As in the earlier cases, the recent decisions seem to turn upon the question whether the grant of the use for the sale of intoxicating liquors is exclusive or is merely permissive, the rule being that when the lease is exclusive the passage of prohibitory laws terminates it, but that where the use of the premises for the purposes of selling intoxicants is merely permissive, the beneficial use is not affected by such laws so as to avoid the lease.”
The application of this rule is illustrated by later cases from the Supreme Court of Washington. Yesler Estate, Inc. v. Continental Distributing Co., 99 Wash. 480, 169 Pac. Rep. 967; Brunswick-Balke-Collender Co. v. Seattle Brewing & Malting Co., 98 Wash. 342, 167 Pac. Rep. 58.
The Supreme Court of Wyoming in the case of Hecht v. Acme Coal Company, supra, after reviewing many authorities on this subject, said: “Entertaining the view as expressed by a majority of the courts we do not deem it necessary for the decision of this case to decide whether the words Tor saloon purposes’ as used in the lease were so used in a restrictive or a permissive sense. In either event, the tenant would not be relieved from the payment of the rent. (Goodrum Tobacco Co. v. Potts-Thompson Co., supra; Houston Ice & Brewing Co. v. Keenan, supra; Lawrence v. White, supra.) The sale of intoxicating liquors is always subject to regulation by the state in the exercise of its police power, and when the landlord has no interest other than a pecuniary one of protecting his property from spoliation and the value of. its use as rental, the principles of law announced in the foregoing decisions are applicable. A lease for unlawful purposes at the time of its execution is void. (Secs. 469, 470, 471, Underhill on Lanlord and Tenant.) A provision in the lease for relief from further liability for rent or for an abatement or proportional reduction thereof in the event of a change of the law with reference to the business to
The Supreme Court of Georgia in the case of J. J. Goodrum Tobacco Co. v. Potts-Thompson Liquor Co., supra, said: “We do not deem it necessary for the decision of this case to decide whether the clause that ‘the purpose of this- lease is for the operation by second party of a general retail business’. denotes only permission to conduct that particular business, or restricts the tenant from devoting the premises to other lawful beneficial use. In either event, the tenant would not be relieved from the payment of rent. During the civil wars in the reign of Charles I, in an action of debt for rent, the defendant pleaded, by way of excuse for the nonpayment of rent, that he had been driven from the premises by the public enemies, im, Prince Rupert and his soldiers; but the court held that neither the hostile army nor an inundation or other casualty would abate the payment of rent where the tenant expressly covenants to pay rent. Parradine v. Jane, Aleyn, 26. Chancellor Kent says that the reason of this rule, which has become fixed and settled in the common law, is that, ‘if a party will voluntarily create a duty or charge upon himself, he ought to abide by it when the other party is not in fault, and when he might have provided, if he had chosen, against his responsibility in case of such accidents.’ 3 Kent Com. 467.”
The Supreme Court of Maryland in the case of Standmitted to the court upon the transcript of the record of the judgment aforesaid, and argument of counsel for the
In the case of Houston Ice & Brewing Co. v. Keenan, 99 Tex. 79, 88 S. W. Rep. 197, the Supreme Court of Texas considered the effect upon a lease providing “that said premises shall be used for the saloon business” of an election under the local option statute of that State resulting; in favor of prohibition. In holding that the putting into effect of prohibition under the statute did not terminate the lease" and absolve the tenant from liability for the rent the court said: “For the purposes of this case it may be asserted that, when a party voluntarily undertakes, and by contract binds himself, to do an act or
In a like situation the Supreme Court of Michigan in the case of Hyatt v. Grand Rapids Brewing Co., 158 Mich. 350, 134 N. W. Rep. 22, held to the same effect. The court said: “We are of opinion that the words in the lease, ‘to be occupied for the purpose of operating-and conducting a retail liquor business and saloon,’ should be construed as permissive in character, rather than as a warranty on the part of the lessors that the premises could be legally so occupied throughout the term. We think the court may take judicial notice of the fact that the use of premises for the sale of liquor at retail is such a use as tends to injure the reputation of the property so used. In inserting in the lease the words quoted, the lessee doubtless desired to have it placed beyond peradventure that it might use the premises for the purpose named. Had it desired to secure such a warranty from the lessor, it would have been easy to provide in the lease for its avoidance upon the happening of the contingency which later made it impossible for it to sell liquor at retail in Clinton County.”
In view of the principles announced in the foregoing-authorities we think that the lease under consideration should be construed as permissive rather than restrictive and that the passage of the statute referred to in the pleadings did not terminate the lease and absolve the
The order of the trial court overruling the demurrer to the pleas of defendants was error. This being so it is not necessary to consider subsequent proceedings in the case.
The judgment is therefore reversed.