Strong v. Morrison

STROTHER, J., pro tem.

This is an action to recover rent for space in a market house leased by plaintiffs to defendant. The complaint is in two counts, one for rent reserved in a written lease, the other for the reasonable rental value o£ the premises. In each count there are, in addition, claims for advertising of defendant’s business, and furnishing refrigeration in accordance with the provisions of the lease. Defendant counterclaimed for damages for breach of the lease, and filed a cross-complaint for rescission and for damages.

The court found for plaintiffs on all of the issues except the claim for advertising, and defendant appeals from the judgment.

All of the provisions of the rather lengthy lease, which was introduced in evidence, were for the benefit of the lessors except the covenant that the lessee should have “the exclusive grocery privilege in this market as represented by our catalog issued monthly,” and the agreement of the lessors to “maintain and conduct a public market in the above mentioned building.” The lease also contained a provision that the lessee should “comply with the rules and regulations of the lessor as printed hereon now in force or which may hereafter be adopted.”

On May 8, 1922, the defendant gave notice to plaintiffs of rescission of the contract of lease for failure to comply with the agreements to maintain a public market and to reserve to him the exclusive grocery privilege, and other alleged breaches of the agreement. On August 19th plaintiffs gave notice to defendant to pay the sums due under the contract within three days or quit. On August 23d defendant surrendered possession of the leased premises.

Appellant specifies in the bill of exceptions a number of particulars in which he claims the findings ,of the court are not sustained by the evidence, but all of the

[171]

findings to which he objects, except those relating to the exclusive grocery privilege and lessors’ agreement to conduct a public market, are findings as to “rules and regulations” of the lessors, not covenants on their part. It was not necessary for the court to find at all as to those, which were evidently to be observed by the lessee, and which he expressly agreed might be changed at any time at the will of the lessors.