Pappadatos v. Market Street Building Corp.

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THE COURT.

This appeal was taken by plaintiff from an adverse judgment in an action to enjoin the respondent Market Street Building Corporation from entering into a lease with the respondent California Orange Drink Company upon the ground that the execution of such a lease would be in violation of the terms of a lease theretofore entered into with appellant.

As a matter of fact, the lease with the California Orange Drink Company had been executed a few days before the complaint herein was filed; however, the action was tried before the term of the tenancy created thereunder had commenced to run; and judgment was entered in favor of appellant. Thereafter motion for new trial was made and came on for hearing before a different judge, and the motion was granted. The second trial was had before still another judge and, as indicated, judgment was entered in favor of respondents.

Both leases related to the use and occupation of certain stores in the Marshall Square Building at the corner of Market and Hyde Streets, San Francisco, of which the Market Street Building Corporation was the owner. The ground floor of the building fronting on Market Street provided an entrance to a theater, and the remaining frontage, on each side of the theater entrance, was divided into stores. For some time immediately preceding the execution of the lease with appellant the owner of the building had been operating a candy business, including the sale of ice-cream, soda-fountain drinks, fruit juices, and light lunches, in the store adjoining the east side of the theater entrance; and in February, 1929, if sold the equipment and fixtures therein to appellant for $5,500 and entered into a written ten-year lease with him for the use of said store. The lease provided for the payment of a rental of $250 a month for the first year, with an annual increase of $25 a month each year up to and including the fifth year; and it contained a provision that the property leased should “be used and occupied only for the manufacture and sale of candy, the service of ice cream, soda fountain drinks, sandwiches and light lunch . . . ” It also contained the following provision: “While the lessee is lawfully in possession of the demised premises hereunder, the lessor agrees not to rent any other store on

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