*1 ADAIR: MR. JUSTICES BOTTOMLY majority opinion is said in the not concur all that We do solely upon herein, do concur in the result reached but we Sherman v. ex rel. authority opinion court’s State 32. Court, 51 Mont. 152 Pac. District TURMAN, F. GEORGE the Estate Administrator G. F. Corinne M. Plain- Turman, Turman, Deceased, STORES, v. SAFEWAY Inc., Appellants, tiffs Respond- Maryland et Corporation, al., Defendants ents. 9428. No. September 4, 1957.
Submitted 1957. Decided November (2d) 302. 317 Pac. *2 Messrs. Smith, & Rimel, Boone Missoula, appellants. for Ralph Mr. J. Stanley Sorenson, Helena, Anderson and Mr. P. Mr. George P. Sarsfield, Butte, respondents. for
Mr. Rimel, Jack W. argued Mr. Anderson and Mr. Sarsfield orally. ALLEN, Judge (sitting in
The HON. GEORGE J. District Castles.) place of Mr. Justice F. Turman, G. Turman and Corinne M. com-
Appellants, declaratory judg- in the menced this action district court by premises respondents, declare the use of certain ment to Safe- Stores, Incorporated, Maryland corporation, a way and Roose- Company, corporation, garage Motor a Montana velt-Osbome contrary the terms of purposes to be certain written lease appellants Safeway Stores, Incorpo- between and entered into predecessor Safeway rated, corporation, Stores, a Nevada Maryland corporation, respondents, Incorporated, one of the other Company, the Motor it sublet to Roosevelt-Osborne enjoined so from respondents be respondent; praying separate cross- turn, by using premises. Respondents, said adjudicating judgment the sublease for complaints, seek good purposes and valid. dis- judgment
This of the district court appeal is from missing appellants decreeing sublease complaint of good and valid.
Following taking appeal court was notified writing Turman, appellants, F. that G. one of the was deceased son, George Turman, appointed F. had admin- his been his Rule XYII istrator of estate. accordance with of this appropriate court an order of substitution made entered herein. 11, appellants leased to Safe-
On November corporation way Stores, Incorporated, a Nevada written lease years period thirty-three September from 1941. Safe- occupancy into way Stores, Incorporated, entered *3 period premises a retail food store therein for a and conducted Safeway years. Stores, of On In- about eleven March premises Motor corporated, to Roosevelt-Osborne subleased years April 1, Company period of twelve from 1953. Company occupancy into the Roosevelt-Osborne Motor entered premises garage a motor sales and of the and conducted business therein. complain use of
Appellants building that the of the Stores, premises by Safeway Incorporated, its use on the from under the Roosevelt- as a food store to its use sublease retail Company, as motor and garage business, Osborne Motor a sales building places greater contemplated by a burden on the than originally appellants Safeway made between lease Stores, Incorporated.
Appellants’ specifications fifteen brief contains of error. however, in Counsel, argument have confined their themselves embody of propositions specifica- three main all their (1) cutting That the of a of as follows: 14-foot tions error door in the front building of was waste and a of violation lease; (2) apart That change, from the structural lessee vio- implied an lated covenant of the lease not to use purpose materially it different from that for which was let; (3) injunction proper remedy. That is the propositions by appellants
The urged up so will be taken in sequence.
Proposition One. The evidence discloses that Roosevelt- right Osborne Motor Company, given in accordance with the in sublease, their altered the front of the to make suit- operating able for the motor their sales and by cutting business opening installing 14-foot an over- operated by head door hung ceiling. a motor from the Paragraph VI of the states: lease “Lessee repairs, improvements make such alterations and in premises demised as deem desirable for In same. case alterations are made without the consent of lessor materially change and are such as front partitions or of said building, agrees partitions lessee to restore such front or to its original expiration condition at the lease, of this or renewal thereof; provided, lessor, thirty (30) days at least before the expiration gives writing term requiring said lessee notice such restoration.” support appellants’ contention such material waste, they quote general rule
alteration constituted Jur., Tenant, 32 Am. 206, page Landlord stated 194, as follows:
“The well established that the absence of a doctrine statutory contrary, legal provision right, to the a lessee has no lessor, changes to make material without consent or buildings the leased alterations in on to suit his own convenience, need, taste, and that material alteration or *4 in and the nature character of a on the leased it premises, though even enhances the value of the and reversion, is beneficial to the constitutes waste.” as There is no doubt to the correctness this rule or that the material altera- is a in opening of 14-foot cutting alteration applicable because rule not here tion, but the para- lessor, permitted as the consent of was made with quoted VI of the lease above. graph Jur., in 32 Am. is stated applied here
Thus, the rule be to 196, 197, as follows: Tenant, 208, pages and Landlord by the agree- course, authorized the alteration made is “Of when not be parties, it will waste.” ment of by authorized argue, however, that the alterations Appellants only store VI, for food paragraph quoted above, could be ambiguous, They that the “its use” are purposes. contend words should have admitted explain meaning to their the court as proof by offer of No. oral evidence disclosed their follows: by G-. Tur- witness, F. prove plaintiff now offers to
“The into man, stand, time the lease was entered at the on the that inquiry was discussed; when provision that assignment negotiating with Safeway were then agents who of the made assignment of the clause. to the him for this lease as corporation Safeway He as follows: That them advised organizations, corporate forms and through operated different necessary might that in the conduct of their business corporation an- assign lease between one for them Safeway organization; provi- other, part as a all oper- their subletting was in connection with sion relative necessary they very often found business, food ations in the counter, provision that the the meat or to sub-let desirable pur- sub-letting incorporated the lease for was to pose.” used, give each word language we are interpreting liberty ordinary meaning its and a is not at phrase court express meaning a lease a did
to read into plain use” language used. The “its are and unam words Safeway Stores, Incorporated, biguous. “Its” refers to assignment assignees clause in the lease also to virtue *5 278
or assignment sublessees. The in paragraph clause is stated IX of the lease as follows:
“Lessee shall right assign lease, have the to or transfer this or to or part underlease sublet the whole or of said leased premises. assign Should lessee this lease it shall nevertheless re- main surety liable as payment to lessor for full the rent ac- to cording the terms of this lease.” nse” simply “Its Safeway Stores, means such use as Incor- assignees porated, sublessees, might or premises. have for the The following words of the court in Goldstein, Davidson v. 58 App. (2d) 909, Cal. Supp. (2d) 665, 666, 136 apply aptly Pac. appellants’ proof to offer of 2:No.
“The fact that before the written lease was entered into the parties discussed building, defendant’s and defendant said he engage wanted to lease to it the tire business and engage would in that and battery business, the not does limit his use purposes. to those The conversation not purport does to effect, have that and even if it did, it given could not be such against effect the written containing lease no such limitation.” 311, at appearing The annotation 151 A.L.R. reads as follows: premises may “The limitations the use which leased on to be put parties is a matter of such vital to importance con it ordinarily cerned that be assumed that agreement if thereto, respect was made terms thereof would have been being This so, inserted the written lease. parol evidence properly testimony rule will exclude in respect any previous to contemporaneous negotiation or agreement. oral Davidson (1943) App. 58 Supp. (2d) 909, (2d) v. Goldstein Cal. 136 Pac. 665; Mfg. General American L. Ins. Co. v. North American Co. (1943) 488, 619; 51 App. (2d) Pierrepont 320 N.E. Ill. 61-69 Street, (1940) 412, 727; Inc. 124 (2d) v. Feist N.J.L. 11 A. (1934) Hunts Point Restaurant v. Oval Foods 153 Misc. 450; Wyche 274 v. (1933) N.Y.S. Sakellaris 205 N.C. 170 Weatherly 638; Agri. S.E. v. American (1933) Chemical Co. 16 (2d) 592.” App. 613, Tenn. S.W. case,
Likewise in this if the appellants wished to limit to a authorized they purpose the alterations particular have included lease, they should could and terms they so, can having done the lease. Not words of limitation in parol the admission vary the terms used in lease lease, appears ns would to evidence. From terms of limitation implied a speculation say be mere might put some future at on use which used in from the mere fact that date, *6 by express provisions Certainly, the beginning as a food store. IX, quoted VI by paragraphs and of lease itself as shown the alterations opinion, contemplated it that in this was earlier sub premises might the be might further, and that required, be parties. It the universal rule by is occupied let and different possible phrases that all the of written when all words and given to written instrument instrument are effect and the construed as a whole.
Proposition underlying The sec- argument appellants’ Two. property ond is retail proposition that the was let for use pur- only, authorizing and the use for store sublease its greater premises and so poses placed a burden on the lease. a material use as to violate the terms of the right of the lessor to the use The restrict of leased elearly is dis- expressed to if in the lease not specific express but the construe re- puted, lease we have to contains no concerning prohibitions any or of kind use strictions of premises. any premises is that entitled to use rule lessee
The is part interference purpose, without on lawful or valid by express not long as such is forbidden landlord, so necessarily implied or some construc by the lease provision of thereof, amount to waste or destruction of and does not tion property. an im- urge that the terms of the lease itself raise Appellants than premises use the other food stores not to plied covenant XII paragraphs III They attention to call uses. building placed is that provided it to on wherein lease premises comply shall be constructed with all laws “so as to governmental regulations applicable to a used for foods”; sale of VI paragraph provided wherein agrees permit any “lessor portion other of said or premises other owned or controlled lessor and situate occupied by within 50 feet said be used for or dealing business keep any staple in or shall stock sell or fancy groceries, or meats, fruits, vegetables, bakery or or or goods.” cases, implied part
“As other covenants on the of a lessor or a lessee arise when satisfactory express there is a basis in the parties contract of the which makes it necessary to imply cer- tain obligations duties and in order to purposes effect the parties to the made, contract but justified the covenants can be only upon ground legal necessity arising from the terms aof contract or Jur., the substance thereof.” Am. Landlord Tenant, “However, section page implied 145. covenants are not Jur., Covenants, favored in the law.” 14 Am. Conditions Restrictions, page 490.
It that the itself here be said lease and the evidence show question
without and the trial court found contemplated at the time lease was entered *7 into building that the would be used for retail a food store. However, question implied is: an agree Does fact raise ment not to use it for purpose? other We believe does not; in interpretation, fully supported by our we are 1150, 2 (2d) annotation in A.L.R. wherein it is said: “Moreover, according weight authority, of to the words used merely descriptive in a lease which are of the character of the use, premises, although indicating particular are not to be con- upon confining strued right as restrictions the lessee his to use premises particular may to the use which sug- such words gest. 585, See annotation in 148 A.L.R. where it is further pointed provisions out that prem- authorize the use of specific purpose merely give ises or which par- consent a property, generally regarded use of the permissive ticular are as
281 therefore, in the ab- nature, rather than in and do not restrictive the lessee to the use limiting language, sence of other restrict specified in the lease. ‘‘ It statement in lease that has been said that mere is insuf- specified purpose leased be used for a implied it for other agreement ficient to raise an not to use purpose. (1909) 540, 141 120 Chamberlain v. Brown Iowa * * * N.W. 334. strictly
“Although point subject present with the annotation, (1926) Harper attention called to Hannan v. 1119, 189 Wis. N.W. held A.L.R. where was that implied no covenant lessee the first floor of favor of a a building building will that arise the second floor of such shall be used for purposes only, residential from the fact that purposes was constructed for residential and had been purposes devoted to such prior at all times to the execution of the lease. proposition The court said that the existing that con- premises ditions the uses put to which have been in- can be voked supply implied an covenant for the use purposes essential supported was not the authorities ’’ cited. remaining question
The sole or not the is whether building by the use of the Motor the Roosevelt-Osborne Company garage, from a sales as retail food store to motor evidence, shown amounted to waste or destruction of the building. necessary It is not to detail the evidence in this con except nection that to state it showed garage purposes customary used for sales and in the motor man ner, including repair, painting, usual activities of and stor age of presence grease automobiles with the attendant oil floor, storage on the gasoline, resulting of oil and and the painting; fumes from exhaust and increased building. conflicting insurance rates on the The evidence was building. to the However, effect such uses on the the trial building by court found that such use of the the Roosevelt- *8 Company Motor Osborne not constitute waste does or destruction improper and is an unreasonable and not say thereof, injurious reversionary interests. We cannot judgment. that the evidence fails to sustain the said, necessary In view of what we have heretofore it is not injunctive appellants’ proposition third relief determine proper remedy. ais judgment
The is affirmed. HARRISON,
MR. CHIEF JUSTICE concurs. sitting The DUNCAN, Judge, HON. PHILIP C. District place of Mr. Angstman, disqualified, Justice concurs.
MR. JUSTICE BOTTOMLY: I dissent. the in- clearly that it was my opinion the evidence shows lease- at the time the plaintiffs and defendants
tention of the question would be used that the executed alterations authorized the lease could Any retail food store. “its use” are only purposes. The words be made such store Stores, Safeway Incorpo- plain unambiguous, and refer to the intention rated, only, any sublease allowable under necessity would of parties and the terms of the contract Safeway inter-corporate pur- purposes for food store and for poses. the words used in a lease-
The intention of the majority reading opinion, From given are to be effect. owning property that one conclusion be reached specific purpose. This is a not restrict its use under a lease to a I agree. dangerous precedent with which cannot case, that, of this my understanding It under the facts protecting his property may compelled owner pay higher fire insurance property by insurance, much by different more premium property his wasted have sublessee, as here the use, by destructive where purposes. store See R.C.M. originally leased food 42-106, part: thing “When a is let provides-in *9 other particular must not use for purpose, the hirer # * purpose *.” agree by I the Ala equitable principles with the announced in Supreme Nelson, bama Ala. Court Woolworth Co. v. 449, 451, 13 considering 85 So. A.L.R. that court in wherein interpreting a and similar lease clause which was as follows: right “The lessee W. Woolworth shall have the to make [F. Co.] changes parts building such alterations in as it such * ** necessary purposes, finds providing for its that such ’’ injure building alterations will not the said: observe, outset, authority change “We at the that this granted is (1) by alter to the lessee and is limited the necessities contemplated its use, by against injury of (2) the inhibition building. to the authority It that not in- seems clear independent tended sublessees, and cannot be for benefit of changes extended to include the prompted by necessities, their by much less merely. evidently of It considerations convenience related Company, to the business Woolworth and contem- of plated changes experience such interior might actual use“and necessity show the of. conceding, argument, proposed changes
“But for that these Company are sanctioned and directed the Woolworth under it, grant authority sublessee, or that its Parisian authority Company may privity granted itself the claim for original lessee, changes are we are convinced such authorized, legal Certainly they injure and amount to waste. physical building, by its destroying structure sub- its profoundly changing adaptations.” stance and structural Emphasis many supplied. Citing cases. original plaintiffs
Here the lease between and defendants con- provision: following repairs, tained the “Lessee make such improvements alterations and demised as it Certainly deem for use of the same.” altera- desirable such only purposes, only tions be made for food store and then could intercorporate purposes. not, by This its terms, for clause does sublessee. extend to other Here use results erected, and struc specified added burdens. This turally solely has been so purposes, built food store years. only for some It sense and com used thirteen common mon deteriorate much knowledge such will faster used stress, under the than when vibrations and as a thereby built, designed for the it was creating legal rule announced in the waste of the estate. The majority opinion application in this our has no case where statute, 42-106, prescribes different rule. Where terms intent of the lease do not disclose true at are some execution, the time of or where the terms silent on particular readily understood, intent cannot be parties may by parol shown where as here the offered evidence *10 proof vary nor to contradict the terms of written agreement, only explain parties but intent of the in the a Equity grants use of words. relief to restrain certain to lessor particular a lessee a limited to use of the demised using estate, from waste will completely from the use than thereof different anticipated. Compare Boh Pan Petroleum v. American 805, Corp., Cir., (2d) 864; Brock, 5 142 Kan. 128 F. Surface v. (2d) 193, 1005; Godfrey Black, 51 Pac. 39 17 Pac. v. Kan. 849. parties requires that each of
I rule of law that know of no as testify that the written must, witness, contract to a lawsuit as a parties. intentions of the express, clear as to the does not or is not 531; Chessman, 430, 436, 164 Pac. 53 Mont. Compare Parchen v. (2d) 206 Pac. 809. Whorley Koss, 122 Mont. v. error in reversible my opinion district committed court No. 1 and No. which of- denying plaintiffs’ proof offers n written contract, vary the terms of the fered evidence was not terms, explain the intent of but to nor to contradict refusing erred thereof, and the court in the use of the words fact, that the use of matter of under the evidence as a to find uncontemplated burden on places an legal thereof, constitutes and the owners waste of the estate. trial. judgment
I order a new would reverse the MR. JUSTICE ADAIR: Bottomly.
I dissenting opinion concur in the of Mr. Justice THE KUNESH, VICTOR E. Appellant, Plaintiff v. FALLS, CITY OF GREAT al., et James B. Austin, Mayor, Respondents. Defendants No. 9500 September 11, 8, 1957
Submitted 1957. Decided November (2d) 317 Pac. *11 Jerry O’Connell, Mr. Domke, Falls, J. Mr. David R. Great appellant.