(DOWNLOAD) "Parker v. Levin" by Supreme Court of Minnesota # eBook PDF Kindle ePub Free
eBook details
- Title: Parker v. Levin
- Author : Supreme Court of Minnesota
- Release Date : January 04, 1934
- Genre: Law,Books,Professional & Technical,
- Pages : * pages
- Size : 57 KB
Description
LUMMUS, Justice. On August 25, 1931, the defendant leased to the plaintiff, for five years beginning September 1, 1931, a store at 1147 Broadway in Somerville, to be used for the purpose of operating a delicatessen store such as in now conducted [by the plaintiff] on the premises, and covenanted that no other delicatessen store shall be located on the premises; viz. 1119-1147 Broadway, Somerville. On April 26, 1932, the plaintiff brought this action for breach of the covenant. The fact was, that the defendant, on October 23, 1931, leased for five years to the Great Atlantic and Pacific Tea Company a store on the premises referred to in the covenant, at 1141 and 1143 Broadway, for the purpose of a general merchandise business, including fresh meats, fish, fruits, vegetables, delicatessen, pastry items. The Judge, sitting without a jury, found that the word delicatessen, which was common to the purposes expressed in the two leases, includes cooked meats, prepared salads, and cheese, all of which were sold by the plaintiff and the Great Atlantic and Pacific Tea Company in competition with each other. The two stores were separated only by an entrance to the upper floors of the same building. On these facts the Judge rightly ruled that the covenant was broken, and that the plaintiff was entitled to recover. A delicatessen store, within the meaning of the covenant, is one that sells delicatessen, and not merely one that sells nothing else. Fitz v. Iles, [1893] 1 Ch. 77; Waldorf-Astoria Segar Co. v. Salomon, 109 App. Div. 65, 95 N. Y. S. 1053, affirmed 184 N. Y. 584, 77 N.E. 1197. We cannot follow Mook v. Weaver Brothers, Inc., 61 App. D. C. 214, 59 F.(2d) 1028, so far as it may tend to the contrary. The plaintiff testified that she vacated the leased premises on April 18, 1932, because of the competition of the Great Atlantic and Pacific Tea Company, but no such question of eviction is involved as the defendant contends. The present action is based on the express covenant against competition. If the covenant could have been enforced specifically against the competing company (Strates v. Keniry, 231 Mass. 426, 121 N.E. 151; Sheff v. Candy Box, Inc., 274 Mass. 402, 174 N.E. 466), the existence of that remedy did not exclude an action on the covenant. Neal v. Jefferson, 212 Mass. 517, 521, 522, 99 N.E. 334, 41 L. R. A. (N. S.) 387, Ann. Cas. 1913D, 205.
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