Shean v. Weeks

SHAW, J.

The plaintiffs appeal from a judgment in favor of the defendants. The record is presented in typewriting, as provided in section 953a of the Code of Civil Procedure.

The action was begun on March 6, 1915, to enjoin the breach by the defendants of a covenant of a lease executed by the defendant Weeks to the plaintiffs, on September 1, 1914, the defendants other than Weeks being the lessees of Weeks under a subsequent lease. '

The lease to the plaintiffs was for a portion of the ground floor of the building formerly known as Berkeley Inn, and included a space fronting 37 feet on Telegraph Avenue and 136 feet on Bancroft Way. The covenant which it is alleged was broken is as follows:

“It is understood that the lessees are at present carrying, on in the store space fronting on Telegraph Avenue the business of general confectionists and are engaged in the manufacture and sale of candy, ice-cream, light lunches, soda water, etc., and the lessor agrees that he will not during the term of this lease, carry on or conduct or permit to be carried on or conducted, under any lease or' letting, upon any portion of the premises owned by him at said corner of Bancroft Way and Telegraph Avenue, any business which shall involve the selling or handling or manufacturing of merchandise of

[594]

the same character as that sold or handled or manufactured by the lessees, their assigns, or subtenants in the course of their business as general confectionists. ’ ’

On December 16, 1914, Weeks leased to the defendants Elbert M. Vail and Henry R. Vail all of the premises referred to in the aforesaid covenant, except the part thereof previously leased as aforesaid to the plaintiffs. Thereafter said lessees and the defendant McLeod established a restaurant and a cafeteria on parts of the premises so leased to them by Weeks.

The complaint alleges that “a large and important part of plaintiffs’ business, so conducted, consists of the serving of hot and cold lunches, meals and food, to the public, to be eaten at tables provided by plaintiff on the premises, and also to be carried away in bulk by the purchasers thereof. That such lunches, meals, and food are served by plaintiffs in said establishment on the demised premises, continuously from 8 o’clock A. M. until midnight each day,” and that the said Vail and others, lessees of Weeks, are carrying on in another part of the premises “a restaurant, cafe, cafeteria, eating-house and lunch-room, in which lunches, meals, or food are served to the patrons thereof at tables therein provided, or are carried away in bulk by said patrons.” The room in which the said defendants carried on said business was in a portion of the premises owned by Weeks, referred to in the aforesaid covenant. It is claimed by the plaintiffs that the business so carried on by Vail and others is of the same character as the business of plaintiffs as “general confectionists,” and that it conflicts therewith, and takes from the plaintiffs a large and valuable portion of their .custom.