Princess Amusement Co. v. Smith, 56 So. 979

Princess Amusement Co. v. Smith

56 So. 979 | Ala. | 1911

ANDEBSON, J.

The only theory upon which the equity of the present bill can be sustained is the cancellation or annulment of a certain contract or agreement between T. S. Smith and Kirby, forfeiting the lease in fraud of the company and other stockholders. While such a fraudulent agreement is averred, it is not proven. The proof shows that the company was behind with the rent and that liens had been created on the rink superior to the lien of Mrs. Smith, and by the terms of the lease, if there was a. default in the payment of the rent or a violation of any other condition of same, the landlord had the right to re-enter the premises and *344annul the lease, without notice or demand. The respondent, therefore, had the right to declare the lease forfeited, independent of any agreement with or surrender of the possession by Kirby, and the proof utterly fails to show that the forfeiture was fraudulently procured, as she had the legal right to declare said lease-forfeited, and did do so, regardless of the motive or intention on the part of her husband and Kirby in making-the agreement, subsequently reduced to writing and dated June 24, 1908. This agreement was not one of forfeiture, but was one looking to the future operation of the rink, and upon the hypothesis that the lease had already been forfeited. Therefore, with this feature of the case removed, the bill is shorn of all equity, and any relief to which the complainant is entitled must be upon the assumption that the lease was legally forfeited.

The lease having been legally forfeited, the respondent could not be guilty of a conversion in going into the-possession of the rink and skates, even though the rink was a severable chattel and did not become a part of the freehold.

Whether or not the respondent is liable to the complainant for a conversion of the rink and skates, by us-, ing the same, we do not decide; for, if such is the case,, the complainant would have a plain and adequate remedy at law.

Affirmed.

All the Justices concur, except Dowdell,. C. J., not sitting.