181 Iowa 594 | Iowa | 1917
“Said premises are leased for Film Exchange and film and theater supplies purposes only, and are not to be used for any unlawful or offensive purposes whatever.”
The lease further provides that the lessee should not assign or sublet the premises, or any part thereof, without the written consent of lessor. The lease was to run from Dei cember 15, 1914, to May 15, 1916. Defendant went into possession and paid rent for nine months. In May, 1915, the city council of the city of Davenport passed an ordinance known as the Building Code, which made it unlawful to manufacture, keep, store, handle or repair any inflammable motion picture films in buildings which are not fireproof, etc., which ordinance was to take effect 60 days after its passage. It is conceded that the building in question is within the prohibition of the ordinance.
By its answer, defendant pleaded the ordinance, and that the further conduct of its business, as contemplated by the lease and as restricted thereby, was entirely forbidden by the ordinance, where the same had been lawful prior to the passage of the ordinance; that, pursuant to the ordinance, notice was duly served upon defendant by the city, requiring it to vacate the premises; that plaintiff caused to be prepared and introduced before the city council an ordinance substantially the same as that afterwards incorporated in the Building Code; and that, by reason of the activities of plaintiff and its agent, the ordinance was passed by the council; that it was importuning the council to pass said ordinance and was actively engaged in securing its passage for the sole purpose of compelling defendant to va
It is shown by the testimony that the handling of films is 99 per cent of the business of a film exchange; that an office is maintained for film purposes only, and that the films cannot be kept at one place and the office at another; that supplies sold by a film exchange are incidentals carried for the accommodation of film users, and are not a-source of direct profit, nor a substantial part of the business; that there are regularly established businesses, of separate and distinct character, that make and sell the different articles used about a theater, or for theatrical performances, and that these are distinct from the film exchange business.
Appellant contends that the principal point in the case is as to whether defendant was deprived of the beneficial use of the premises, and appellee in its argument relies upon this proposition for affirmance. Appellant argues that defendant was not deprived of such use, while appellee contends that it was. There is little, if any, dispute between counsel as to the law of the case. Appellant’s legal propositions are: that a partial destruction of the subject matter of the lease does not excuse the payment of rent (citing In re Bradley, 225 Fed. 307); and that lessees are not released from liability for rent by the passage of a city ordinance restricting uses of the leased property, if they are not deprived of the beneficial use of the premises, and if the premises may be used for other purposes (citing 24 Cyc. 1148, Kerley v. Mayer, 31 N. Y. Supp. 818, Coffin v. United
It is thought by appellant that the premises were used in part only for purposes prohibited by the ordinance, and that, in addition to handling and storage of films, defendant used the premises as an office, which was required for filing appliances and correspondence, and that there was other work done in the office besides handling of films; also that defendant carried other theater supplies outside of films, which it could continue to handle after the passage of the ordinance. It is conceded, however, by appellant that the handling of these incidental supplies was a small part of the business. Appellant contends that the clause in the lease permitting the use of the premises for film exchange and film and theater supplies purposes permits defendants to handle, in addition to the films themselves, film supplies and theater supplies, and that the language should be so construed. And they say that, therefore, the entire beneficial use of the leased premises was not prevented by the ordinance.
Without further discussion, it is our conclusion that the trial court rightly determined the matter, and the judgment is, therefore, — Affirmed.