272 F. 637 | 6th Cir. | 1921
(after stating the facts as above). There are three substantial contentions made by the plaintiff in error: The first is that the right to cancel did not pass to the lessor’s grantee, but was personal to the lessor; the second is that the covenant for cancellation, if broken, only gave rise to an action for damages; the third is the contract with Flexner was not the “bona fide sale” which would justify cancellation.
We find no case in Kentucky precisely in point, but our conclusion is inferentially supported by Ventura Co. v. Pabst Co. (Ky.) 109 S. W. 354. A generally contrary conclusion is reached in McClintock v. Loveless, 5 Pa. Dist. R. 417, and in Bruder v. Crafts Co., 79 Misc. Rep. 88, 139 N. Y. Supp. 307. In each of these cases, the right of the landlord to cancel was arbitrary. In the McClintock Case, he could cancel at his pleasure and without paying anything; in the Binder Case, he could cancel if he made a sale, but he paid nothing except to return one month’s rent. In the present case, if he cancels, he must repay the agreed value of the unexpired term, running from $10,000, for the longest cancellation, down to $2,000, for the shortest period. It is plain that we may well draw an inference of personal confidence in the existing landlord, when we find him given the power of canceling without paying for the privilege, which we could not draw in a case where the landlord exercising the privilege is required to pay a substantial sum; and these two cases could well be distinguished for this reason, even if they should not be regarded running counter to the prevailing rule.
Nor do we think the provision of the contract, that Flexner’s ultimate liability should be contingent on his getting possession, gave the contract any character inconsistent with that of sale. It was a natural and reasonable provision. No purchaser who wanted possession would buy, excepting under some such arrangement, and to permit the Theater Company to say that it need not give possession unless there is a sale, and that there is no sale because it will not give possession, is to defeat the purpose of the contract.
4. The final order of the court below was that the writ of possession issue upon the payment into court of $8,000 for the use and benefit of the Theater Company, “if it shall finally be adjudged to be entitled thereto.” The Theater Company asks that this direction for payment should be made absolute, leaving nothing open for litigation. The plaintiff tendered this sum and the tender should be kept good. No uncertainty as to the payment of this money to the Theater Company should remain. The order should be that if, within some short time to be fixed by the court, this sum of money be paid into court for the use and benefit of the Theater Company, the writ of possession issue, and the money be paid over to the Theater Company, and that, in default of such payment within the time fixed as limited or as extended, the proceeding be dismissed. The final order below is vacated, but only for the purpose of being rtí-entered as modified in the particular specified.
Since there is nothing to indicate any serious danger of prejudice to the Theater Company by the form of the order as entered below, the costs of this court will be awarded as if on affirmance.