Greil Bros. v. Mabson, 60 So. 876

Greil Bros. v. Mabson

60 So. 876 | Ala. | 1912

DOWDELL, C. J.

The lease, as entered into by the parties, says “that the parties of the first part have this day leased to the parties of the second part the following premises in the city of Montgomery, Ala., viz.: The barroom and fixtures known as the Windsor Hotel bar, and located in the Windsor Hotel building on Commerce street, for occupation as a bar, and not otherwise.” It will be noted that the lease includes the barroom and fixtures inseparably, and provides that the room is to be occupied “as a bar, and not otherwise.” Appellee was bound, under this contract, to have permitted the use of the property as a bar, and the appellant was prohibited from using it for any other purpose. — 24 Cyc. 1062-1064, and note 6; Parkman v. Aicardi 34 Ala. 393, 73 Am. Dec. 457; McDaniel v. Calian, 75 Ala. 327.

“Bar” and “barroom” seem to have a more restrictive meaning than “saloon,” and by the great weight of authority mean a place from which intoxicating liquors are to be sold. — Words and Phrases, vol. 1, p. 704; Town of Leesburg v. Putman, 103 Ga. 110, 29 S. E. 602, 68 Am. St. Rep. 80; City of Spokane v. Baughman, 54 Wash. 315, 103 Pac. 14. It is therefore evident that the main, and, indeed, the sole, purpose for which the property was leased was that it should be used as a place for selling intoxicating liquors. Therefore, did the said business become totally prohibited by the subsequently enacted state prohibition law? We think that such was the result, and that the said prohibition law forbade the very business and purpose for which the property was leased. The general rule is that, where the performance of a contract becomes impossible subsequent to the making of same, the promisor is not thereby discharged.-9 Cyc. 627. But this rule has its exceptions, and these exceptions are where the *451performance becomes impossible by law, either by reason of a change in the law, or by some action or authority of the government. — 9 Cyc. 629, 630; Burgett v. Loeb, 43 Ind. App. 657; 88 N. E. 346. It is generally held that, where the act or thing contracted to be done is subsequently made unlawful by an act of the Legislature, the promise is avoided. Likewise, where the performance depends upon the continued existence of a thing which is assumed as a basis of the agreement, the destruction of the thing by the enactment of a law terminates the obligation. — Hearst v. Tenn. Brew. Co., 121 Tenn. 69, 113 S. W. 364, 19 L. R. A. (N. S. 964, 130 Am. St. Rep. 753; Am. Mer. Exchange v. Blunt, 102 Me. 128, 66 Atl. 212, 10 L. R. A. (N. S.) 414, and note, 120 Am. St. Rep. 463, 10 Ann. Cas. 1022; Lorillard v. Clyde, 142 N. Y. 456, 37 N. E. 489, 24 L. R. A. 113 ; Wood v. Building Ass’n, 126 Iowa, 464, 102 N. W. 410; School District v. Howard, 5 Neb. (Unof.) 340, 98 N. W. 666; Hooper v. Mueller, 158 Mich. 595, 123 N. W. 24, 133 Am. St. Rep. 399; Paige on Contracts, vol. 3, §§ 1363-1370; Jamieson v. Natural Gas Co., 128 Ind. 555, 28 N. E. 76, 12 L. R. A. 652. The case of Hearst v. Tenn. Brew. Co., 121 Tenn. 69, 113 S. W. 364, 19 L. R. A. (N. S.) 964, 130 Am. St. Rep. 753, is quite similar to the case at bar. There a place was rented as a whisky saloon, and before the expiration of the term the sale of liquor Avas made unlawful, and the court held that the lease was terminated by the adoption during the term, of a laAV making the sale of liquor illegal. It is true that the word “saloon” seems to have been used instead of “bar” or “barroom,” but the opinion indicates that it related to a whisky saloon, instead of a “saloon” in its broader meaning, and as is defined in our own case of O’Byrne v. Henley, 161 Ala. 620, 50 South. 83, 23 L. R. A. (N. S.) 496.

*452In the case of Burgett v. Loeb, 48 Ind. App. 657, 88 N. E. 346, the Indiana court held that a lease of a place for the sale of whisky did not become inoperative, because the lessee could not get a license to sell during some of the years covered by the lease. The reason given being that his inability to use the premises for the purpose for which they were rented did not arise from a change of the law, so as to prohibit the business, but resulted from the rejection of his application for a license, and which was a risk that he assumed. The court, however, recognized, the general principle of law heretofore stated, as the opinion says: “It is the general rule that, where the performance of a contract becomes impossible subsequent to the making of the contract', the promisor is not thereby discharged. To this rule there is a well-established exception, viz., where the performance becomes impossible by a change in the law, the promisor is discharged. The facts here presented do not bring the case at bar within the exception. Appellant did not discontinue his business because of a change in the law, but because of its application.”

We therefore hold, that, as the property was leased for the sole purpose of conducting a barroom, or a place for selling intoxicating liquors, the business was destroyed or prohibited by the enactment of the prohibition law, and the defendant was thereby relieved from performance of the contract after the law became effective, and was not liable for rent after January 1, 1909, if it vacated the premises and surrendered the property, as set out in the special pleas.

This holding is different from the result in the O’Byrne Case, supra, as the court there held that the lease was not terminated by the prohibition law, as the business for which the place was rented was not necessarily prevented by said law. There the lease was for *453a “saloon/- and the definition adopted by the court made it much more comprehensive than a “bar” or “barroom,” and the court dwelt upon the fact that the tenant had the right to and could conduct a saloon without disposing of intoxicating liquors; and that the business for which the place was rented was not necessarily abolished or prohibited by law. Again, the lease there related only to the building. Here the lease covered the room and bar fixtures, and the property was to be used “as a bar, and not otherwise,” and, as set out in the pleas, was surrendered the day before the prohibition law went into effect. On the other hand, the law and reasoning, as laid down in the opinion in said O’Bryne Case, is in full accord with the present holding and with the weight of authority.

The case of Goodrum Co. v. Potts-Thompson Co., 133 Ga. 776, 66 S. E. 1081, 26 L. R. A. (N. S.) 498, is not only opposed to the present holding, but' is contrary to the overwhelming weight of authority.

The case of Houston Ice Co. v. Keenan, 99 Tex. 79, 88 S. W. 197, is not opposed to the present holding. The court in said case recognized the correct exception to the general rule that performance of a contract Avill not be enforced when made impossible by a change in the law, but held that there Avas no change in the laAV making the performance impossible; that prohibition resulted from a local option election held under a law which Avas in existence Avhen the lease Avas made; and that the lessee should have protected himself by a clause in the lease against a contingency then authorized by law. Here the pleas do not set up prohibition under an election held under a local option law existing Avhen the lease was made, but an act of the Legislature passed after the lease was made.

*454The case of San Antonio Brewing Co. v. Brents, 39 Tex. Civ. App. 443, 88 S. W. 368, and Kerley v. Mayer, 10 Misc. Rep. 718, 31 N. Y. Supp. 818, upheld the lease, upon the theory that the lessee could use the premises for other purposes, under the terms of the lease; that the provision as to a first-class whisky saloon did not restrict the use to a liquor saloon, but merely restricted the character of that business, and the lessee was therefore authorized to use the building for any other legitimate purpose.

As this case seems to have been tried upon a misconception of the law, which, if applied upon the next trial as above indicated, should eliminate many of the questions involved in the present appeal, we do not deem it necessary to consider all of the assignments of error. It is sufficient to say that the trial court erred in sustaining the plaintiff’s demurrers to defendant’s special pleas 3, 4, 5, and 6, and the judgment is reversed, and the cause is remanded.

Eeversed and remanded.

Anderson, McClellan, Sayre, Somerville, and de Grappenried, JJ., concur.