Hyatt v. Grand Rapids Brewing Co.

Brooke, J. {after stating the facts). Counsel for appellant in his brief states that the assignments of error raise four points. We find it necessary to discuss but one, the first, which is set out as follows: “Whether the court was right in holding that the adoption of local-option in Clinton county had no effect whatever to cancel or render void the lease, and that defendant remained liable under it just the same after the adoption of local-option as though it had never been adopted, and rendering a verdict for that reason.” It is the claim of appellant that this case is controlled by our decision in Hooper v. Mueller, 158 Mich. 595 (123 N. W. 24, 133 Am. St. Rep. 399). We think the cases are clearly distinguishable. In the Hooper Case the lessors not only agreed to lease a building, but to furnish for the lessees suitable bondsmen, and further covenanted that, in case they were unable to furnish such bondsmen, the lease should become void. The adoption of the “local-option law’’made it impossible for the lessors to fulfill their part of the contract, and this court held that thereby the lease became void according to its terms. [363] The instant case presents no such situation. Nowhere in the lease can there be found an undertaking on the part of the lessor that the lessee shall at all times' during the continuance of the lease be legally able to operate a retail liquor business upon the premises; otherwise the lease to become void. We are of opinion that the words in the lease, “to be occupied for the purpose of operating and conducting a retail liquor business and saloon,” should be construed as permissive in character, rather than as a warranty on the part of the lessors that the premises could be legally so occupied throughout the term. We think the court may take judicial notice of the fact that the use of premises for the sale of liquor at retail is such a use as tends to injure the reputation of the property so used. In inserting in the lease the words quoted, the lessee doubtless desired to have it placed beyond peradventure that it might use the premises for the purpose named. Had it desired to secure such a warranty from the lessor, it would have been easy to provide in the lease for its avoidance upon the happening of the contingency which later made it impossible for it to sell liquor at retail in Clinton county. In making the contract it did, we must presume that it acted with a knowledge of the law. That the use for which it stipulated in the lease might at any time become illegal was known to it. The so-called “local-option law” had been upon the statute books for many years, and many counties in the State had prohibited the sale of intoxicating liquors under its provisions. That such action in Clinton county was possible was, of course, known to the lessee. That it should have been apprehended, from the history of the liquor traffic in this State during the past 20 years, is clear. The lessee doubtless did sq apprehend it, and yet it chose to enter upon a contract which did not provide for its avoidance upon the happening of the contingency plainly in view. The language used is, in our opinion, permissive and not restrictive. The premises demised could have been used for [364] other than the specified purpose. Indeed, a portion of them were so used during all the time they were occupied under the lease, and all of them were so used during six months of the last year of occupancy. While the construction placed upon the contract by the lessee, as indicated by its use of the premises, is not controlling, it is not without force when the court is called upon to determine the meaning of the language used. Upon the question here involved, the following cases may be consulted with profit: Houston Ice & Brewing Co. v. Keenan, 99 Tex. 79 (88 S. W. 197); Lawrence v. White, 131 Ga. 840 (63 S. E. 631, 19 L. R. A. [N. S.] 966); Abadie v. Berges, 41 La. Ann. 281 (6 South. 529); Shreveport Ice & Brewing Co. v. Mandel Bros., 128 La. 314 (54 South. 831); Koen v. Brewing Co. (W. Va.), 70 S. E. 1098; Hecht v. Coal Co. (Wyo.), 113 Pac. 788 (34 L. R. A. [N. S.] 773); Barghman v. Portman, 14 S. W. 342, 12 Ky. Law Rep. 342; O’Byrne v. Henley, 161 Ala. 620 (50 South. 83, 23 L. R. A. [N. S.] 496; Kerley v. Mayer, 155 N. Y. 636 (49 N. E. 1099). Having reached the conclusion above indicated updn this question, it becomes unnecessary to consider the other questions discussed in the brief of appellant. The judgment is affirmed. Steere, McAlvay, Blair, and Bird, JJ., concurred.