Fricke v. Braden

SCHOTTKY, J. pro tem.

On October 28, 1939, Paul Prom executed and delivered to appellant Russell R. Inks, a lease of “the grocery, liquor and bakery departments in the Super Market to be built by lessor on lots 82, 83 and 84 of Swanson Unit No. 1.” Said lease provided further: “Lessee to have the exclusive right to sell the following: General stock of groceries; liquors, wines and beers; bakery goods, candies, tobacco, nuts and dried fruits in cello packages (not exclusive).” Said lease was not recorded until July 5, 1940.

On March 20, 1940, said Paul Prom executed and delivered to respondent Clayton B. Braden, a lease of:

“All of the south store-room of that certain building owned by the lessors and located on Lots 82, 83 and 84 of Swanson Unit No. 1 to the City of Sacramento, the central portion of said building being now occupied by the Riverside Market. Said store-room is known as No. 2719 Riverside Boulevard.”

Said lease provided further:

“It is understood and agreed that said premises are being leased for the purpose of conducting therein a general drugstore business, and business customarily associated and connected therewith.”

On July 12, 1940, respondent Richard Fricke commenced an action for declaratory relief, alleging in his complaint that he had purchased “lots 82, 83 and 84 of Swanson Unit No. 1 to the City of Sacramento, together with the buildings thereon, being No. 2719 Riverside Boulevard, and known as the Riverside Market;” that there had been assigned to' him by the former owner of the property, two leases, one to the appellant Inks, and one to the respondent Braden; that a controversy.had arisen between Fricke and said lessees as to their respective rights under said lease, both of said lessees claiming the right to sell liquors upon said premises; and said respondent prayed for a declaration of rights and duties of himself and said lessees under said leases.

Respondent Braden fried an answer in which he alleged

[268]

that he had the right to sell liquors upon said premises leased by him. Appellant Inks filed a cross-complaint, in which he claimed that under his lease he had the exclusive right to sell liquors on said properties, and that respondent Braden had no right to'sell liquors on the part of the property leased by him, and appellant prayed for a judgment decreeing that he had the exclusive right to sell liquors in said building, and that respondent Braden be enjoined from selling liquors in any portion of said building.