167 Conn. 294 | Conn. | 1974
The plaintiff, Farmers and Mechanics Savings Bank, has appealed from a judgment of the Superior Court denying its request for injunctive relief against the defendants, First Federal Savings and Loan Association of Meriden and King’s Department Stores, Inc., in an action involving the plaintiff’s attempted enforcement of a restrictive covenant contained in its lease of space in a shopping center purporting to grant to the plaintiff the exclusive right to conduct within the shopping center a “financial or lending business” during the term of the lease.
The plaintiff, hereinafter referred to as Farmers, is a savings bank having its principal office at Middletown, Connecticut. The defendant First Federal Savings and Loan Association of Meriden, hereinafter referred to as First Federal, also is a savings institution having its principal office at Meriden, Connecticut, and the defendant King’s Department Stores, Inc., hereinafter referred to as King’s, is a Delaware corporation operating a chain of retail department stores in several states, including a store located in the shopping center in question.
The finding, which requires no material correction, sets forth the following facts: On or about February 1, 1973, Farmers entered into a written lease with the Meed Company, hereinafter referred to as Meed, a New York partnership which owned the
More than a year prior to the recording of Farmers’ notice, on March 3,1972, King’s had leased from Meed space in the Plaza by a written lease of that date which conferred upon King’s subleasing rights sufficiently broad to permit King’s to sublease a por
Prior to the execution of its lease with Meed, attorneys for Farmers had searched the title to the premises upon which the Plaza was located, but at the time of the execution of its lease Farmers had no actual knowledge of the provisions of the lease between Meed and King’s. Farmers, however, was aware during its negotiations with Meed that King’s was in possession of and actively occupying a portion of the Plaza, and made no inquiry as to the specific provisions of King’s lease. King’s, during negotiations with Meed for its lease, had caused the land records to be searched and had asked for and received copies of previous leases.
Farmers, prior to the execution of its lease, inquired of Meed whether Meed was in a position to grant to it the restrictive covenant in question and was assured by Meed that it was in a position to do so. Farmers assumed that Meed was in a position to lease with restrictive covenants, made no inquiry as to existing leases other than to question Meed, and relied exclusively on Meed’s representation as to the validity of the restrictive covenant. Apparently solely on the strength of such reliance, Farmers expended approximately $70,000 to prepare its leased premises for use as a savings bank.
Late in 1972 First Federal was negotiating with King’s for the sublease of premises in King’s Plaza
Farmers was aware of “satellite banking,” and notified the Home Loan Bark Board, on April 4, 1973, of its displeasure that this site had been approved for First Federal. It was claimed by Farmers that unless enjoined, King’s would sublease to First Federal a portion of its premises for use as a satellite branch, but at the time of trial King’s had not yet completed the formalities of its sublease of space to First Federal.
The Connecticut Bank and Trust Company operates a branch bank across the street from the Shopping Center and, at the time of the trial, Farmers was operating its branch banking facility at the space in the Shopping Center leased by it from Meed. The location by First Federal of a satellite office at the Shopping Center would cause competition to Farmers at its branch office in the Shopping Center.
From the foregoing facts, the court concluded that Farmers, when it entered into its lease with Meed on February 1, 1973, had constructive and
Essentially, Farmers’ claim is that the court erred in concluding that the covenant did not bind King’s and First Federal since it was subsequent to King’s lease. With this contention we cannot agree.
Farmers argues that the Meed-King’s lease is void as to it because no notice thereof was recorded, as required by General Statutes § 47-19.
In another early case this court had occasion to consider the effect of a statutory predecessor of § 47-19 and stated: “The lease was in due form of law, and in all respects complete and perfect, except only that it had not been recorded in the town records of Salisbury, the town in which the ore bed lay. This was the only objection to the lease. The defendants insisted that it was by the statute declared to be absolutely void, except as to the lessors; not that they claimed anything themselves under the plaintiffs’ lessors, or were deceived or in
Farmers here is neither a bona fide purchaser of the property without actual notice nor a creditor of either party to the Meed-Bong’s lease, and, accordingly, the statute offers it no protection. The Meed-King’s lease was perfected as to the parties thereto and firmly established the contractual rights and obligations of both parties. To allow a subsequent covenant given by Meed to a third party with actual notice and not privy to the original lease to vary such rights or obligations without the necessity of seeking the assent of the prior lessee, King’s, would emasculate one of the basic tenets of contract law, namely, that a party is entitled to rely upon its written contract as the final integration of its rights and duties. It is not within the power of the court to make a new or different contract. Osborne v. Locke Steel Chain Co., 153 Conn. 527, 531-32, 218 A.2d 526.
We are not called upon to decide the validity of restrictive covenants of the type involved here
There is no error.
In this opinion the other judges concurred.
“[General Statutes] Sec. 47-19. leases eor more than one year. No lease of any building, land or tenement, for life or for any term exceeding one year or which provides for the renewal thereof or an option to purchase such building, land or tenement, shall be effectual against any persons other than the lessor and lessee and their respective heirs, successors, administrators and executors, unless it is in writing, executed, attested, acknowledged and recorded in the same manner as a deed of land, provided a notice of lease in writing, executed, attested, acknowledged and recorded in the same manner as a deed of land and containing (1) the names and addresses, if any are set forth in the lease, of the parties to the lease, (2) a reference to the lease, with its date of execution, (3) the term of the lease with the date of commencement and the date of termination of such term, (4) a description of the property contained in the lease, (5) a notation if a right of extension or renewal is exercisable, (6) if there is an option to purchase, a notation of the date by which such option must be exercised and (7) a reference to a place where the lease is to be on file shall be sufficient.”
See footnote 3, supra.
An exhaustive annotation covering the validity, construction and effect of such covenants may be found at 97 A.L.R.2d 4.
Although both defendants raised this issue at the trial level, the trial court did not find it necessary to rule thereon. Both Qa-fen/fonts raised the point as a special defense to the injunction action and by way of counterclaim, alleging an antitrust infraction. No decision was rendered upon the counterclaim nor did either defendant file a cross appeal assigning error in the court’s failure to treat this issue. “In general, this court will not entertain issues raised by an appellee unless the appellee has filed an assignment of errors and a cross appeal. Practice Book § 607; Rizzo v. Price, 162 Conn. 504, 512, 294 A.2d 541 ....’’ Akin, v. Norwalk, 163 Conn. 68, 70, 301 A.2d 258.