We cannot write a new lease for the parties to accommodate the lessee, nor will we depart from the well established rule that a restrictive covenant, being in restraint of trade, is to be strictly construed. Keyes v. Carrick, 268 S.W.2d 397; Fraser Pharmacy Corp. v. Sular Realty Corp., 211 N.Y.S.2d 666; Bookman v. Cavalier Court, 93 S.E.2d 318; Weinberg v. Edelstein, 110 N.Y.S.2d 806; Norwood Shopping Center, Inc. v. MKR Corp., 135 So.2d 448; 51 C.J.S., p. 866; 14 Am.Jur., p. 621; 30 Cal.Jur.2d, pp. 51-52; Fenton v. Crook, 102 A. 834, 106 A. 891. As noted, paragraph 4-e makes no reference to parking or access within the "general vicinity" area.
The restriction involved herein is one designed to either eliminate drive-in competition and limit other types of food establishments in the same shopping complex. Our court of last resort has adopted the view in Keyes v. Carrick, Ky., 268 S.W.2d 397, 402 (1954) that: It is an elementary rule of construction that a covenant or agreement by a lessor not to lease the retained property for the purpose of conducting a business in competition with the lessee must be positively expressed and, being in restraint of trade, must be strictly construed.
Under the circumstances of this case we hold that it is. A strong argument could be made to the contrary in view of the strict construction position we have taken in the past concerning covenants in restraint of trade. Cf. Keyes v. Carrick, Ky., 268 S.W.2d 397 (1954). However, it is clear that the purpose of the restrictive covenant in this lease and the intention of the parties were to prohibit competition with the beauty shop, and the evidence is abundant that the beauty school was in fact competing with the beauty shop.
As noted above Searles billed Giem using the quoted unit prices which statements Giem paid without protest and as they were due. Under these circumstances we hold that this course of dealings indicated the intention of the parties. Willey v. Terry Wright of Kentucky, Ky., 421 S.W.2d 362 (1967) and Keyes v. Carrick, Ky., 268 S.W.2d 397 (1954). In Trapp v. Conley, 28 Ky.Law Rep. 475, 89 S.W. 514 (1905), bi-monthly statements were computed, it was claimed on the wrong basis, but were paid. Holding the parties bound by what they did, we said "While the proof is conflicting as to what the contract was, there is no contradiction of the proof as to the construction of the contract by the parties, and this practical construction of the contract by them while the work was going on is conclusive upon them now."
Moreover, the words relied upon as creating a covenant not to compete should not be extended beyond the literal meaning and if two constructions are possible, the one which does not limit the use of the property should be adopted. Keyes v. Carrick, 268 S.W.2d 397, 402 (Ky.Ct.App. 1954); Topol v. Smoleroff Development Corp., 34 N.Y.S.2d 653, 654, 264 App. Div. 164 (1942); see also 51 C.J.S., Landlord and Tenant, ยง 238 (1955). It is reasonable to assume that when Berkeley and A P entered the lease agreement, Berkeley had envisioned that a supermarket would be its anchor tenant and that when Berkeley restricted its right to rent out other space in the shopping center to a supermarket, it did so with the understanding that one supermarket would exist within the shopping center.