Proprietors Realty Co. v. Wohltmann

The opinion of the court was delivered by Trexchard, J. This is an action by the Proprietors Bealty Company against Detrich Wohltmann for rent reserved by a written lease made for a term of five years from July 1st, 1916, at a rental of $3,000 per annum, payable — 304 — monthly in advance. Plaintiff sued for the February, 1920, rent. There was a verdict in favor of the plaintiff, and the defendant appeals from the consequent judgment. We are of the opinion that the judgment is right. At the trial the lease was admitted and the testimony established that, on January 28th, 1920, the defendant offered to surrender the demised premises; that such offer 'was refused by the plaintiff; that the defendant then abandoned the premises, and that the rent in question was unpaid. Thereupon the judge directed a verdict for the plaintiff, and that was proper. The lease in question provides that the demised premises were “to be used and occupied as a cafe and for no other pui*-pose whatsoever.” The defendant contends that by the adoption of the eighteenth amendment to the federal) constitution and the enactment of the national prohibition law, known as the “Volstead act,” the lease in question was nullified. But that is not so. By the lease the use of the premises- was limited to cafe purposes. The word “cafe” was originally a French word meaning “a coffee house,” but the word as now ordinarily and popularly used in English means a restaurant or house for refreshments. In construing a written contract the words employed will he given their ordinary and popularly accepted meaning, in the absence of anything to show that they were used in a different sense. Tn the present case there is nothing to show that the parties used the word in any other than its popular and ordinary meaning. It follows, therefore, that under such a lease refreshments of all kinds allowed by law might be kept and sold. No doubt the parties contemplated^ among other things, the sale of both intoxicating liquors and non-intoxicating beverages, because the lessee covenanted in the lease, among other things, “to strictly ■ comply with all national, state, municipal, or other laws, ordinances, regulations, and rules — 305 — of any kind governing the possession, sale, ownership or handling of intoxicating liquors or beverages of any hind that the lessee may sell, own, have possession of or handle.” But such intention was of course contingent upon such sale continuing to be lawful. This is to be inferred, not only from the language used, but from the fact, of course known to them, that the right to sell intoxicating liquors for beverage purposes then rested in the discretion of public officers, and above all was subject to federal and state control. Since neither the eighteenth amendment nor the Yolstead act deprived the lessee of the right to keep and sell nonintoxicating beverages and refreshments, we are called upon to deal 'only with a case where the lessee was subsequently deprived of the use of the premises for one only of the several purposes contemplated by the .lease, and we limit our discussion and decision to such a case. Mow the general rule is that where the contract does not restrict the use of the leased premises to a single purpose, it is not invalidated by a subsequent enactment prohibiting the use for one of the several purposes contemplated by the lease. Pertinent cases are collected in a, useful note in 7 A. L. R. 836. This rule proceeds upon the theory that since such leases are for more than one purpose, the depriving of the lessee of one or more less than all’ of the purposes contemplated does not deprive him of the beneficial use of the leased property, he being still entitled to use the premises for the carrying on of the unrestricted part of the purposes contemplated by the lease. Thus in Standard Brewing Co. v. Weil (1916), 129 Md. 487; L. R. A. (1917 C) 929; 99 Atl. Rep. 661; Ann. Cas. (1918 D) 1143, there was a lease for “saloon and restaurant” purposes only, and it was held that the lessee was not released from his liability under the lease because of a subsequent order of the liquor license commissioners prohibiting further use of the premises for a saloon, the lessee not being thereby — 306 — entirely deprived of the beneficial use conferred by the lease (the. court pointing out that the word “saloon/’ as there used, meant a place whore intoxicating liquors were sold and consumed). In Conklin v. Silver (Iowa), 174 N. W. Rep. 573; 7 A. L. R. 832, where a building was leased for the sole purpose of carrying on the “iron, metal, and rag business” therein, it was held that a statute inhibiting the storing of rags by dealers therein in buildings of the character leased, did not render the lease invalid, since it did not deprive the lessee of the beneficial use or enjojunent of the property because he could still carry on the business of dealing in iron, metal and rags on the leased premises, and was merely denied the privilege of storing rags therein, which, although it possibly rendered the use less valuable, did not destroy the beneficial use. So, in Grimsdick v. Sweetman (1909), 2 K. B. (Eng.) 740; 78 L. J. K. B. (N. S.) 1162; 101 L. T. (N. S.) 278; 73 J. P. 450; 53 Sol. J. 717, where the lease was of a “beer-house and premises with the bakeshop in the rear,” in holding that the lessee’s inability to renew his license to conduct the beerhouse as such did not terminate the lease, both Justice Darling and Justice Jell adopted the principle that a lease is not terminated unless the beneficial use of the premises is more than merely impaired, and applying the same argued that there was no' such destruction of the uses specified in the lease as would wholly deprive the lessee of an advantage therefrom, since lie could still live in the house and use the bnke-shop even though he could not run a beerhouse. The same principle is illustrated in Teller v. Boyle (1890), 132 Pa. 56; 18 Atl. Rep. 1069, where the property was leased for exclusive use as a saloon and dwelling. And see Lawrence v. White (1908), 131 Ga. 840; 19 L. R. A. (N. S.) 966; 63 S. E. Rep. 631; 15 Ann. Cas. 1099, wherein “the Albion Hotel,” consisting of “the corridor, office, bar, barber shop, cigar stand, billiard-room,” &c., was leased, and in which it was held that tire use was permissive so that the passage of a statute prohibiting the sale of intoxicating liquors — 307 — did not, in the absence of a provision in the contract, entitle the lessee to a reduction or proportional abatement of the agreed rental. And see also Christopher v. Charles Blum Co. (1919) (Fla.), 82 So. Rep. 765, wherein a building was leased for the purpose of carrying on a “wholesale and retail business, both o.r either, and other storage purposes,” with a proviso that a certain part of the building was to be used “only for a first-class barroom for white people,” and in which it was held that the uses specified were permissive, and noi restrictive, so that it could not be said either that the lease was terminated and the lessees evicted, or that the lessees were relieved from further payment of rent by the enactment of a statute rendering the operation of barrooms illegal. Coming now to the application of the rule to the present case it will be seen that the lessee has not been entirely deprived of the beneficial interest which the lease contemplated. The sale of intoxicating liquors was not the only use to which the property was agreed to be devoted. It was, in legal effect, leased for the double purposes of the sale of intoxicating liquors and the sale and service of non-intoxicating beverages and refreshments, and there is no prohibition against its continued use for the latter object. These lines of business were not identical or inseparable. There being, consequently, a serviceable use for which the property is still available consistently with the limitations of the demise, the lessee is not in a position to assort that he is totally deprived of the benefit of the tenancy. It is further to be observed that while the impossibility of obtaining a license for the sale of intoxicating liquors on the rented premises during the whole of the term of the lease might have been reasonably anticipated, no provision was made in the agreement for the relief of the lessee in such a contingency. Stated concretely, the rule is that a lessee is not released from liability for rent under a lease of premises “to be used and occupied as a cafe, and for no other purpose whatsoever,” merely because he was subsequently deprived of their use for the sale of intoxicating liquors for beverage purposes for the remainder of the term by the eighteenth amendment to the — 308 — federal constitution and the Yolstead act, it appearing that no provision was made in the lease for such a contingency. And that is this case. Our decision does not rest alone upon any one of the reasons we have referred to, but upon the presence here in combination of all the considerations we have mentioned, which undoubtedly afford ample ground for the conclusion that the defence interposed was not well founded. The judgment will be affirmed, with costs.