231 Mass. 426 | Mass. | 1918
The circumstances under which the lease was executed, as found* by the judge or undisputed, were as follows: The defendant owned a building bn Park Avenue in Worcester, containing eight or more stores. The plaintiff hired the store numbered 423 and 425, for five- years from July 1, 1915, the lease providing that he should “carry a general line of groceries, meat, provisions and fish.” The Cloverdale Company then was carrying on a similar business in the defendant’s building at number 431, under a written lease. This company had a series of stores, the one at 431 Park Avenue being known as Cloverdale Store numbered fifty. On the outside were the words “ Clover-dale Company” and “Cloverdale Store.” The covenant in controversy in the plaintiff’s lease, is as follows:
“And the lessor, in consideration of one dollar and other valuable considerations, hereby promises and agrees to and with the lessee that she shall cause the fish market at No. 425% Park Avenue to be discontinued immediately and further promises and agrees that during the term of said lease she shall not rent any part of the building on premises in which the above said stores are located for any grocery, provision, meat or fish business, except the Cloverdale. Store now located at No. 431 Park Avenue.”
Before April 26, 1918, the Cloverdale Company vacated the store it had occupied; and the defendant executed a lease of it to the Community Stores Company, a corporation which maintained a series of stores for the sale of provisions, meats, groceries and fish. The plaintiff thereupon brought this bill in equity to restrain the defendant from permitting said No. 431 to-be occupied for this competing business. A decree was entered in his favor, from which the defendant appealed.
The contention of the defendant is, that while she covenanted not to rent any part of her building for carrying on the same business in which the plaintiff was engaged, she excepted from that covenant the premises numbered 431. ' If' such were the intention of the parties presumably they would have expressly so stated. What they did in fact take out of the covenant was not “No. 431 Park Avenue” but the “Cloverdale Store” which then was “located at” that place. There is nothing in the language they used which indicates an intention to permit the
If the. language itself left any doubt as to whethere the parties intended entirely to exclude these premises from the operation of the covenant, that doubt would be removed by reading the lease in the light of the facts surrounding the parties when it was executed. The plaintiff was binding himself for a period of five years, not merely to pay rent for the store numbered 423-425 Park Avenue, but “to keep said stores open for business every business day during the continuance of this lease, and to carry a general line of groceries, meat, provisions and fish, except by special permission.” There was then a fish market in the adjoining store, numbered 425%. This was to be discontinued immediately. In the same-building, at number 431, was another grocery and provision business, carried on by the Clover-dale Company; but that company had a written lease, not yet expired.
In the opinion of a majority of the court' the trial judge rightly ruled that the plaintiff’s rights were violated by the defendant when she undertook to lease to the Community Stores Company the premises numbered 431 Park Avenue.
As the Cloverdale Company vacated the building before the present controversy arose, it is unnecessary to consider whether the words “Cloverdale Store” in the clause limiting the covenant refer to the business then conducted by that company at No. 431, and would authorize a transfer of the business from that place to another store in the defendant’s building.
Decree affirmed with costs.
