108 Kan. 81 | Kan. | 1920
The action was one to enjoin obstruction to enjoyment of privileges conferred by a lease. The plaintiff recovered, and the defendants appeal.
The defendants were installing fixtures and otherwise preparing to conduct a Piggly-Wiggly grocery store, in a room which they had leased for that purpose. It occurred to them it would be advantageous to have a meat market in connection with the store, and they sublet to the plaintiff space in the store in the rear of aisle No. 1, for a meat market. The plaintiff was induced to take the sublease by representations of the defendants that all patrons of the Piggly-Wiggly store would be obliged to pass by the .plaintiff’s counter, and by representations of other benefits and advantages which would accrue by reason of the operation of a meat market in connection with the Piggly-Wiggly store. It was necessary for the plaintiff to have fixtures built specially for the location assigned to him. The fixtures were delivered to the plaintiff, who placed them in the store without objection by the defendants, but when the plaintiff attempted to install them, he discovered the defendants had placed their own fixtures opposite aisle No. 1, where the plaintiff’s counter was to stand. The defendants would not permit their fixtures to be moved. The plaintiff had no key to the building, but J. B. Timmons, who acted for the defendants in opposing the plaintiff, testified as follows:
“Mr. Lochmann’s fixtures are in the rear of the building, in the southeast corner of the building.
“Q. You refused at that time to allow him to place his fixtures? A. I never refused him to do but one thing.
“Q. What was that? A. Not to move my fixtures.
“Q. You did refuse at that time to place his fixtures in the rear of aisle No. 1? A. There was not anything said about his fixtures. He said, ‘I am going to take this out of the way.’ I says, ‘You are not either.’ I told my man in there not to let him move my fixtures.”
The man referred to was -the contractor who erected the Piggly-Wiggly fixtures. He testified as follows:
“Mr. Lochmann told me to move these fixtures. I had them placed according to the blue print, and I told him I would not do it, and he said, T cannot start business here unless these fixtures are moved.’ I told him I would not move them until I had further orders.”
The principal assignment of error is that the court denied the defendants a jury trial. The cases of Bodwell v. Crawford, 26 Kan. 292, Atkinson v. Crowe, 80 Kan. 161, 102 Pac. 50, and Gordon v. Munn, 83 Kan. 242, 111 Pac. 177, are relied on. None of them is applicable. In the Bodwell case, a lessee took possession of real estate under a lease from the owner, made by agents. The owner asserted that the agents had authority to collect rents only, and not to lease. From his standpoint, the case was the common one of a trespasser taking unlawful possession of another’s land, and he was remitted to an action at law. The court said:
“An action for the recovery of real estate is one in which at common law parties are entitled to a trial by jury. They have a right to the verdict of a jury upon the questions whether plaintiff was owner, whether the defendant was in possession, and whether if so the possession was unlawful. In this very case defendant has a right to the verdict of a jury upon the questions whether Eoss & Stillson were general agents of plaintiff and generally authorized to bind him by leases, or were specially authorized to make a lease of these lots without any limitations as to the purposes for which they should be used, and indeed upon every fact essential to plaintiff’s right to the possession of the premises.”, (Bodwell v. Crawford, 26 Kan. 292, 294.)
In the Atkinson case and in the Gordon case, the contest was between rival claimants to ownership, and the real issue was whether the title of one claimant or the other required an award of the property. (Akins v. Holmes, 89 Kan. 812, 133 Pac. 849.)
The plaintiff’s title under the sublease was not disputed, and his right to possession under the sublease was not disputed. There was no dispute about possession of substantially all the space leased to the plaintiff. There was no dispute about the boundary line between the area leased to the plaintiff and that
The defendants say that operation of plaintiff’s meat market would violate rules regarding operation of a Piggly-Wiggly store, and so would violate the-sublease. No rules for operation of a Piggly-Wiggly store are disclosed. If there be a rule forbidding connection between a meat market and a PigglyWiggly store, it is not a rule of operation in the sense of a sublease, and the defendants are estopped by the sublease and their representations from invoking it.
The defendants say the judgment is inequitable because it exposes them to forfeiture of their license from the PigglyWiggly corporation, and so will do more harm than good. The defendants created the predicament in which they find themselves, and have no merit of their own entitling them to invoke equity against fulfillment of their obligation. They do not exhibit to this court their contract with the Piggly-Wiggly corporation, and their status may wait until forfeiture of their license is threatened. Meanwhile, nothing short of the injunction granted can secure to the plaintiff the benefits of his contract, which are not measurable in damages.
The judgment of the district court is affirmed.