Delong v. Black's Package Co.

KOFORD, P. J.

This is an action of unlawful detainer based upon the defendant’s alleged violation of a covenant in its lease. The lease provided that the lessee should have the right to use “said premises only for the purpose of carrying on a general mercantile business.” Judgment was for the defendant. It was and is the contention of plaintiffs that this condition of the lease was violated by the defendant by maintaining in a portion of the basement of the said demised premises a place where meats, vegetables, jams, and salads were cooked and prepared to be sold in a delicatessen department or counter in the store in the demised premises, and to some extent sold in two other stores conducted by defendant in the city of Fresno.

The evidence given at the trial shows with considerable particularity the kinds, quantities and the manner in which the foods sold in the delicatessen department were prepared. The frontage of the whole store was approximately fifty, feet. The number of employees in the store varied from sixty to seventy-five and sometimes a greater number was employed on special occasions. The number employed in the basement in preparation of foods was about five to seven and they on occasion helped in the sale of goods in the store proper. It was a store for the sale of all kinds of foods which must mean substantially a grocery-store. Its general

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nature, as it appeared to customers and others coming in and out, was clearly that of a general mercantile business. The landlords and their predecessors visited the store at different times and, although the delicatessen department was established as early as 1913 in a small way and thereafter steadily grew and expanded, it was not until 1925 that they discovered the operations in the basement upon which they predicate the claim that the lessee had violated the conditions of the lease. The record shows that only a portion of the basement was used for the preparation of foods, and that the balance of it was used for storage and cold storage.

Appellants readily admit that respondent is carrying on a general mercantile business, but assert that in addition to that it is operating a factory, be it large or small, in violation of the terms of the lease.

The complaint alleged that the defendant carried on a business other than a general mercantile business, to wit, a delicatessen kitchen, condiment, and jam factory. The court found this allegation to be untrue, but found that defendant had prepared various delicatessen products, condiments, and jams in the basement of said premises, using for that purpose, with the exception of certain meats, materials taken from the general stock in trade of the store. It found that this was done only in the course of the general mercantile business of purchasing and selling food products and that such business at all times was in the usual and customary manner of purchasing products at wholesale, and preparing and placing the same in an appropriate and convenient manner for sale at retail. It is the contention of appellants that this finding is unwarranted. They do not claim it is unwarranted by the evidence, but that it is unwarranted by law. They state that if this reasoning is followed out, it would mean that the tenant here could just as well convert the whole of the premises into a factory to produce or prepare food for other stores throughout the city. On the other hand, respondent claims that if this reasoning is not followed it would result that the grocery-man, who roasted and ground his own coffee for sale as a part of his grocery business, would thereby forfeit his leasehold if it was held for general mercantile business only. The determining question is not whether a particular isolated