D. Ghirardelli & Co. v. Students' Express & Transfer Co.

HENSHAW, J.

The Students’ Express and Transfer Company leased the dead wall of its building to the Diamond Rubber Company under a writing which declared, “In consideration of painting my sign on building as agreed free of charge value $40 I hereby lease to undersigned, lessee,” the wall of building located, etc., “for advertising purposes for a period of five years from date with privilege to said lessee to further use said space for a like consideration from year to year, not however to exceed five years.” The Diamond Rubber Company then upon this wall painted the advertising sign of the Transfer Company and its own advertising sign. This was in the latter part of 1911. In February, 1913, the Transfer Company wrote to the Diamond Rubber Company as follows: “We hold your company’s contract covering the painting of our warehouse in exchange for use of a certain portion of its side for advertising purposes. As the first and only work was done over a year ago we should be glad to have the work repeated before our busy season commences.” The work referred to is admittedly the work of repainting the advertising sign of the Express Company. To this letter the Diamond Rubber Company made prompt reply as follows: “We are in receipt of your communication of the 20th inst., and would advise that on instructions from our factory we are discontinuing outdoor sign painting. Consequently we do not care to take advantage of our privilege of renewing the space leased from you last spring.” The Transfer Company treated this as an offer of rescission and surrender of the lease and in the following month made a new lease of this

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wall space to the Thos. H. B. Varney Company, a corporation engaged in the business of painting advertising signs. The Varney Company immediately took possession of the wall, repainted the Transfer Company’s sign, painted out the Diamond Rubber Company’s sign and in its place painted the advertising sign of one of its patrons. These signs stood undisturbed from May 1, 1913, to February 26, 1914, though the Diamond Rubber Company was well aware of the change. On January 10, 1914, Whitehead, the agent of the Diamond Rubber Company, made a purported assignment of its lease to one Potter, who himself had executed the lease of the Transfer Company in the name and on behalf of the Diamond Rubber Company. Potter was in fact engaged in sign painting. He in turn assigned this lease to plaintiff and under instruction of the plaintiff corporation he painted out the sign which the Varney Company had placed on the wall and painted thereon the sign of the plaintiff corporation. The Varney Company in turn painted out the Ghirardelli sign and replaced the earlier one. The Ghirardelli Company next painted out the Varney Company’s sign and replaced its own, and then commenced this action for an injunction. The court found in favor of the plaintiff, assessed its damages in the sum of $75, and granted it the perpetual injunction prayed for. From that judgment this appeal is taken.