152 Ga. 61 | Ga. | 1921
The case being for decision by the entire bench of six Justices, all of the Justices agree that the judge was not authorized at such hearing to grant a permanent injunction; but the court is equally divided upon the question whether the judge was authorized, under the pleadings and evidence, to enjoin the defendants until the final trial, Fish, C. J., and Atkinson and Hill, JJ., being of the opinion that such an injunction was authorized, and Beck, P. J., and Gilbert and George, JJ., being of the opinion that such an injunction was not authorized. It is therefore ordered that the judgment of'the trial court stand affirmed by operation of law, with direction that the judgment be so modified as to make the injunction temporary. The views of the Justices are stated below.
Atkinson, J. Each instrument of the chain of leases extending from Sulunius to Pilgrim conferred express power to sublet, and .there was no objection to any subtenant until after the chain had been completed and Pilgrim’s interest as a sublessee had attached. After such interest had attached, Sulunius having notice thereof could not, by accepting surrender of Purcell’s lease and executing a new lease to Sudderth as a part of an enterprise between Sudderth and Purcell to circumvent Pilgrim, divest the interest of Pilgrim, or defeat his right to conduct the contemplated business specified in his lease. Hnder such circumstances, Sudderth, being in league with Purcell, would stand in no better position than Purcell; and Pilgrim, being transferee of Jacobs, would stand in the same position as Jacobs, the immediate lessee of Purcell. Pilgrim’s right under his lease was to conduct a billiard and pool room in definite space in the store of Purcell. This was necessarily a right to exclusive use of such space, because the nature of the business would not permit a similar business by the lessor or any one else in the identical space, and the grant of such use by Purcell implied a covenant of quiet enjoyment as against himself and all persons claiming under him. Notwithstanding such implied covenant, Purcell committed a breach of it and proceeded with Sudderth, in manner hereinbefore indicated, to occupy the rented space and conduct therein a billiard and pool room. The question arises, was the judgment of the trial court authorized to the extent of temporarily enjoining Purcell and Sudderth from conducting a
The ease of Justices v. P. R. Co., 11 Ga. 246, was a suit for injunction to prevent destruction of certain toll-gates maintained on ¡a plank road by the complainants. The trial judge in effect granted 'a temporary injunction^ and the judgment was affirmed. In the _ course of thé opinion Nisbet, J., said': “ It is well understood that . equity will not interfere in a case óf a mere trespass.' As a general ■ rulej it leaves the party to his legal remedy. But if there is anything- special in the case — anything which renders the remedy at law impossible or incomplete — impossible, 'for example, when the • trespasser is insolvent, or incomplete when from its nature it is im- . possible to-'prove the damage which grows out of the trespass,— chancery will put forth its restraining hand, and by a decree compel the wrong-doer to desist. The injury done to this company is not ■ alone the destruction of their toll-gate. If that was all, the value of the gate would be the criterion of damages; and that being suscepti
In the case under consideration the measure of damages in an action at- law would be so restricted as to exclude Pilgrim from the right to. recover profits from his contemplated business, on account of the legal impossibility of estimating the amount of his earnings; -and for similar reasons he could not recover at law for the damage to his existing business in the adjoining building, produced by the competing billiard and pool room conducted by Purcell and Sudderth in the leased space in Purcell’s store’. Hnder the circumstances, the remedy at law in an action for damages would not be the substantial equivalent of the remedy afforded
Beck, P. J., and Gilbert and George, JJ., are of the opinion that an interlocutory injunction was unauthorized under the pleadings and evidence. Briefly stated, the facts in the case are as follows: Purcell, who was himself a lessee, executed a lease Jor the remainder of -his term, to D. G. Jacobs, to certain floor space in the premises for the purpose of conducting therein a billiard parlor. The lease from Purcell to Jacobs provided that the latter might sublet the space or assign the lease without the written consent of Purcell. Thereafter Jacobs transferred his lease for a valuable consideration to Pilgrim. At the time of the execution of the lease Pilgrim was operating a billiard parlor in an adjoining building. Purcell refused to admit Pilgrim into possession, and Pilgrim filed a petition in equity to enjoin Purcell (and another alleged to have been in collusion with him) from using the floor space for the purpose of conducting a billiard parlor. The judge of the superior court enjoined the defendants as prayed, and three 'of the Justices of the Supreme Court favor an affirmance of that judgment upon the ground that “ the measure of damages in an action at law would be so restricted as to exclude Pilgrim from the right to recover profits from his contemplated business, on account of the legal impossibility of estimating the amount of his earnings; and for similar reasons he could not recover at law for the damage to his existing business in an adjoining building, produced by the billiard and pool room conducted by Purcell, [and the defendant alleged to be in collusion with him] .in the leased space in Purcell’s store.”
Where the lessor himself refuses to allow the lessee to take possession at the commencement of the term, the lessee may, it is agreed, recover damages from the lessor. Ordinarily the measure of damages for the lessee’s exclusion from the premises is the amount by which the rental value of the premises exceeds the rent to be paid. The lessee is entitled to recover the value of the leasehold estate, less the rent reserved. The lessee may also recover special damages which can be regarded as directly resulting from the lessor’s breach of agreement, express or implied, to
Was. the injunction authorized upon the theory that Pilgrim could not’ recover at law for the damage to his existing business in the adjoining building, produced by the competing billiard and pool room conducted by Purcell (and the other defendant) in the leased space in Purcell’s store? Did Purcell engage to protect the business of Pilgrim ? He expressly stipulated in his lease that the floor space should be used for the purpose of conducting a billiard and' pool room. He did not make the lease directly to Pilgrim. At the date of the execution of the lease Pilgrim was conducting,a billiard and pool room in an adjoining building. It turned out that Purcell’s lessee assigned the lease to, Pilgrim. Can it be said that Purcell contemplated the protection of Pilgrim’s business, when, by the terms of his lease, he required the operation of a business in direct competition with Pilgrim’s business ? Contracts in the nature of contracts in restraint of trade are not favored; and no implied covenant binding Purcell not to engage in any particular business for the protection of one who chanced to become the owner of the lease executed by him can be read into the lease. Particularly is 'this true when the lease, as stated above, called for the establishment of a business to be carried on in direct competition with Pilgrim’s existing business. In' no view of the case, as we think, was the interlocutory injunction authorized. '