Brugman v. Noyes

By the Court, Cole J. This bill was filed to obtain an injunction restraining the defendants, or any of them, from using [10] certain buildings in Milwaukee as a store or shop for the retail of cigars, iron safes, eggs, dried apples, &c.; and to compel them to use the buildings for cabinet warerooms, or to deliver up the possession of the buildings to the complainant. The complainant has a reversionary interest in the premises of some two or three months after the expiration of his lease to Noyes, Elertzheim & Co., which latter lease expires 1st of November, 1861. The foundation for the bill, is a clause in the lease from complainant to Noyes, Elertzheim & Co., that the buildings were “to be used as cabinet warerooms;” and the same clause is in the lease from the owner of the buildings, Fowler, to the complainant. The complainant insists that this clause in the lease is a covenant absolutely restraining his lessee from using the buildings except for cabinet warerooms; and that using them as a store for retailing of cigars, iron safes, &c., is a breach of this covenant, and works a forfeiture of the estate. He alleges that he suffers great pecuniary loss in the premises by reason of the breach of this covenant to use them as cabinet warerooms, and prays that the defendants be compelled, by a decree of court to give possession of the premises to him, or at least to úse and occupy the same only as, and for, cabinet warerooms; the purpose for which they were leased to the defendants. The defendants below and appelants here, filed separate demurrers to the bill assigning several grounds of demurrer. The demurrers were overruled by the Circuit court, and the order overruling the demurrers is the matter now before us for review. Can this order of the Circuit court overruling the demurrers to the complainant’s bill be sustained ? We are of the opinion that it cannot. It will not be doubted that the landlord having the Jus disponmdi may annex whatever conditions he pleased to his grant, provided they be neither contrary to law, nor the principle of reason or public policy. These general maxims are not gainsayed or denied by the counsel who supports the demurrers. He insists, however, that there is no express covenant in the lease restraining the use of the premises to cabinet warerooms, and that a court of equity will not imply a covenant in restraint of a beneficial [11] use of property. This argument strikes us as sound and conclusive against tbe right of the complainant to maintain Ms bill. If the complainant had leased the premises expressly and exclusively to be used for a particular business, or in a particular manner, and there was a continuing breach or disregard of the stipulation, a court of equity would perhaps interfere and enforce the restriction by compelling the lessees to use them for them business. Hills vs. Miller, 3 Paige, 254; Bar-ro^ vs. Eiehard et al, 8 Id. 351; Macher vs. The Foundling Hospital, 1. Y. & B. 187; Lathrop vs. Marsh, 5 Y es. Tun. 259; Banldn vs. ITuskinson, 4 Simmons, 7; Lord Gray de Wilton vs. Saxon, 6 Yes. 106; Steward vs. Winters and Jaynes, 4 Sand. Chy. E., 387. The insuperable difficultyin this case is, that there is no express covenant not to use the buildings except for cabinet warerooms. The clause in the lease is that the buildings were to be used as cabinet warerooms, without words of restriction. It appears that there is another clause in the lease that no cabinet ware should be manufactured in the buildings; and probably this express prohibition would have been enforced had the lessee entered upon the business of manufacturing cabinet ware. The counsel for the complainant contends that the clause in the lease that the premises were to be used as cabinet warerooms, amounts to a direct covenant to use them as such, and for no other purpose whatever. We are unable to concur in this construction of the- lease. Of course the intention of the parties, as that intention is gathered from the whole lease, must control in the case. And looking at the language of this clause, as well as of other clauses, as disclosed in the bill, we do not feel authorized in saying that the sense and meaning of the words employed, show that it was the intention of the parties to restrict the use of the buildings to cabinet warerooms, and prohibit the use of them for any other purpose. We think such a construction is forced, and ought not to be adopted. As already observed, there is an express covenant against manufacturing cabinet ware in. the buildings, and it seems but fair to presume, that if the parties intended restraining the use thereof to cabinet warerooms they [12] would, have distinctly and expressly stipulated to that effect. It is obviously inconsistent with, the principles upon which courts of equity act, to raise by implication a covenant in restraint of a beneficial use of property. The business of selling cigars, safes, &c., is certainly a most innocent branch of trade, not more likely to disturb the adjoining tenants than occupying the buildings as cabinet warerooms; and not in any wise objectionable for injuring the buildings, or increasing the insurance upon them. All the advantages that the complainant would derive from their being occupied and used as cabinet warerooms, would be the good will of an established business in that line there. And if he can compel the defendants to change their trade from selling cigars and safes to selling cabinet ware, it appears to us he could compel them to use them as cabinet warerooms even if they should desire to remove from the buildings and shut them up. We apprehend a court of equity would pause before exercising such a jurisdiction as to compel the defendants to occupy the premises as cabinet ware-rooms, when they desired to close them. In the case of Hooper vs. Broderick, 11 Simons, 47, the defendant was an assignee of a lease of the Cross Keys Inn in St. John street, Clerkenwell, which the plaintiff had granted and which contained a covenant on the part of the lessee, his executors, administrators and assigns, to use and keep open the demised premises during the term as an Inn; provided the proper lic-ences for that purpose could be obtained; and to use his best endeavors to procure the licence to*be renewed from time to time; and not to do or cause, or permit to be done, any act whereby they might become forfeited or be refused. The inn proved a losing concern and the defendant having threatened to do certain acts inconsistent with the first branch of the covenant, the plaintiff filed a bill, and obtained expm'te an injuction restraining the defendant from discontinuing during the term, to use and keep open the premises as an inn, or to renew the licenses from time to time, provided they could be obtained. On motion to dissolve the injunction|theJYice Chancellor said; « The court ought not to have restrained the defendant from [13] discontinuing to use and. keep open tbe demised premises as an inn; wbicb is tbe same in effect as ordering him to carry on tbe business of an innkeeper.” See cases of Blackmore vs. The Glamorganshire Canal Co., 1 Myl. & Keen, 154; Earl of Ripon et al, vs. Hobart et al, 3 Id. 169; Robinson vs. Lord Byron, 1 Bro. C. C., 588; Lane vs. Newdigate, 10 Ves., 192; 2 Platt on Leases, 234. Tbe strongest authority to which we have been referred to sustain tbe complainant’s right to file bis bill, is that of Stewart vs. Winters, before cited. This case, it must be admitted, ,goes to tbe uttermost verge, if it does not conflict with tbe authorities cited herein, and still it appears to fall short of tbe principles contended for at bar, and to be clearly distinguishable from it. In Stewart vs. Winters tbe lease contained the stipulation that the store should be occupied for the regular dry gods jobbing business, cmd for no other hmd of busmess. The lessee attempted to carry on in the store the business of an auctioneer to the annoyance of the tenants of the lessor in the adjoining buildings. The Yice Chancellor denied a motion to dissolve an injunction restraining the defendants from carrying on that business. He stated that he had no doubt that the business of selling goods at auction was prohibited by the terms of the covenant of the lease, and that the lessee knew perfectly well that the lessor intended to exclude the auction business. . Had the lease in the case under consideration contained an express stipulation that the demised premises should be used as cabinet warerooms cmd for no oth&r piurposes, the cases would have been similar. The rule in the case of Stewart vs. Winters may well stand without establishing the right of the complainant to maintain this suit. ■ Erom the view we have taken of the case it becomes unnecessary to examine other questions discussed by counsel and presented for our consideration. The order of the Circuit court must be reversed with costs, and the bill dismissed.