Opinion
July 3, 1951.
Appeal from the Circuit Court, Pinellas County, Victor O. Wehle, J.
Martin Sack, Jacksonville, and Archie Clement, Tarpon Springs, for appellants.
Wolfe, Wightman Rowe, Clearwater, for appellees.
The Floste Corporation brought suit against Nicholas Marlemes and Athena, his wife, under the declaratory judgment Act to construe a lease of certain lands and improvements in Tarpon Springs, Florida, and to declare and determine the extent of certain of its obligations. The improvements consisted of a building, a part of which was adapted for a moving picture theater, and a part to store rooms for retail business establishments. Specifically, the question submitted for determination by the appeal is — does the lease require of the Floste Corporation the operation of a moving picture show in the theater. Ancillary relief is prayed in the bill for an order to enjoin the Marlemes from continuing the prosecution of an unlawful detainer suit they had filed in the County Court of Pinellas County. In that proceeding they sought to repossess the theater building, claiming cancellation and termination of the lease because of Floste's failure to continue the operation of the moving picture show. The lease, in addition to the usual covenants, provides:
"That in consideration of the covenants herein contained, on the part of the said lessee to be kept and performed and the continued occupancy by said lessee of the premises hereinafter described for the term hereinafter set forth * * * which said premises the said lessee hereby agrees to use and occupy for and during the term hereinafter set forth.
"To Have and To Hold the Same for the term of fifteen years from the first day of May, 1939, the said lessee paying therefor the monthly rent of One hundred seventy-five Dollars.
"And the said lessee covenants * * * not to use said premises for any other than as a Theater and Picture Show * * * if the said lessee shall violate any of the covenants of this lease * * * the lessors shall be entitled immediately to reenter and re-take possession of the demised premises, or to enforce payment or compliance with the terms of this lease and the continued occupancy of said lessee, by any appropriate remedy."
Manifestly, the right to cancel or terminate the lease depends on whether the Floste Corporation under its terms was required to maintain the operation of the moving picture show. In its interpretation the lower Court held the lease required the operation of the show and by its decree directed the Floste Corporation to operate it in the accustomed manner for not less than six nights and one matinee each week. The assignment of errors questions the correctness of this holding. There were other issues before the Court but they are not here for review.
It appears that the building was constructed in 1926 and the portion adapted for a theater had been used to show moving pictures for many years prior to April, 1939, the date of the lease. Its use as such was continued by the lessee and upon its acquisition of the lease in 1940 by Floste until about May 15, 1950, when the show was discontinued for reasons not necessary to set forth here, precipitating the unlawful detainer suit in July. The Marlemes, having acquired the fee simple title to the lands, succeeded to the rights of the lessors under the lease. In that part of the building containing store rooms retail mercantile businesses were established when the lease was executed and seem to have been continuously operated since that date. In the making of the lease and its negotiation there is no suggestion in the record that any of the parties considered the benefits, financial or otherwise, that the operation or non-operation of a moving picture show in the theater might have on the building or the store rooms or the several businesses of their occupants. The transaction was uninfluenced by any consideration other than that actually expressed in the lease. The record is devoid of any suggestion that the parties to the lease intended its language to have any other than its usual meaning. While the answer in vague and general terms charges the failure to operate the moving picture show will injure the theater and its future use as such and that the other businesses in the building will be (adversely?) affected, no proof is offered to sustain such charges. The reading of such charge fails to reveal its relevancy.
It seems to be well settled that the lessee is under no obligation, in the absence of specific provision therefor, to occupy or use, or continue to use, the leased premises for the particular purpose to which they seem to be adapted or for which they seem to be constructed even though the lessee or lessor, or both, expected or intended that they be used for such particular purpose. 32 Am.Jur., Landlord and Tenant, Section 198. It is also settled that the grant of the privilege of using the property for a particular purpose or the prohibition against its use for other purposes does not necessarily involve an obligation on the part of the tenant to use it for such purpose. 51 C.J.S., Landlord and Tenant, § 326.
We think the words "to use and occupy" the premises mean no more than the imposition of a restriction on the use of the property to that of a theater. This would seem plain when read in the light of these principles of construction. The inference that the parties intended the more onerous burden of operating the moving picture show during the life of the lease can hardly be reasonably drawn from this language. Surely, if such operation had been within their contemplation apt language would have been employed to that end. We think there is no ambiguity in the language but, be that as it may, any ambiguity should not be resolved to imply operation of the show unless fairly required to effect the intent of the parties gathered from the entire transaction. Golberg v. Pearl, 306 Ill. 436, 138 N.E. 141. This case is unlike those in which the Courts have implied the obligation to operate a business in the premises where the amount of the rental is materially dependent on such operation. Such were the cases of Mayfair Operating Corporation v. Bessemer Properties, 150 Fla. 132, 7 So.2d 342, and Lincoln Tower Corporation v. Richter's Jewelry Company, 152 Fla. 542, 12 So.2d 452, where this Court held that in order to vitalize the full intent of the parties to the respective leases, viewed in the perspective of their negotiation, an implied obligation for continued operation of the respective businesses in the premises was required.
We hold the Chancellor in error in requiring the continued operation of the moving picture show and the cause is reversed with directions to modify his decree in accordance with this opinion.
It is so ordered.
SEBRING, C.J., and TERRELL and ROBERTS, JJ., concur.