Summary
In Gillen-Crow, a restrictive-use clause prohibited the owner from leasing space "to any Drug Store, or any other business which sells drugs or prescriptions."
Summary of this case from Rite Aid of Ohio v. Marc's Variety StoreOpinion
No. 81492
Decided September 9, 1964.
Real property — Leases — Personal restrictive covenants — Enforcible by and against whom — Notice.
A covenant in a lease restricting the use of lessor's adjoining property is a personal convenant rather than one running with the land, and as such is enforcible in equity against a lessee of the adjoining property if he has actual notice of the covenant.
Mr. John Egbert and Messrs. Frost Jacobs, for plaintiff.
Mr. Harry Kasfir and Mr. Arthur R. Heckerman, for defendant Fashion Fair, Inc.
Mr. Donald M. Lerner, for defendant Fair Drug Co.
Mike Mandzak, on February 13, 1959, acquired a tract of land comprised of Lots 12901, 12903, 12904 and 12905 in the city of Middletown, Ohio. He acquired this land to develop commercially. A doctors' building had already been erected in this area as well as certain other commercial structures.
He and Lloyd Miller (who had some interest in the realty although no legal title) on August 31, 1959, executed a lease to plaintiff — the premises leased being described by metes and bounds. This lease contained provisions hereinafter discussed which form the basis of and on which plaintiff predicates its claim and cause of action.
In April 1960, Mike Mandzak deeded by deed containing the same metes and bounds description of land set out in plaintiff's lease — but not property later leased to defendant Fashion Fair, Inc. (hereinafter referred to as Fashion Fair) — to Wildwood Center, Inc.
In March 1962, a new lease from Wildwood Center to plaintiff covering the same premises was executed. On April 11, 1962, Stevens Realty Company, which had acquired the foregoing lots from Mike Mandzak on April 18, 1962, leased the property to Goldbar, Inc. (subsequently changing its name to Fashion Fair), by a metes and bounds description. No part of the property described, though parts of Lots 12904 and 12905, includes any of the land leased to plaintiff.
Fashion Fair — its leased premises adjoin that leased to plaintiff and are, of course, less than one mile therefrom — sublet a portion of its premises to the Defendant Fair Drug Company on or about March 18, 1963. In the subletting instrument Fair Drug was permitted to sell — among other items health aids, beauty aids, patent medicines and cosmetics.
It is the claim of plaintiff that Fair Drug has been and is selling drugs since April 18, 1963, on and from the premises occupied by it and Fashion Fair and adjoining plaintiff's storeroom, thereby violating the following provisions of plaintiff's lease hereinafter referred to as the covenant, restrictive covenant or restrictive clause and perhaps, restrictive agreement:
3. "Any property owned by Lessors within one-half (1/2) mile shall not be sold, leased, or in any way demised to any Drug Store, or any other business which sells drugs or prescriptions."
4. "No property owned by Lessors within one-half (1/2) mile shall be sold, leased, or in any manner demised to any type business with fountain service, except a Restaurant or Department Store."
Plaintiff therefore seeks a permanent injunction against the defendants
"prohibiting the defendants from selling drugs at the premises described above or leasing or demising premises to others for such purpose and use and for such other relief as may be just and proper."
Briefly stated, the plaintiff claims that Fair Drug is selling and has been selling since April 1963, with Fashion Fair's permission and as its sublessee, items, asserted by plaintiff to be drugs, all of which plaintiff claims violates the foregoing covenant (3) contained in its lease with Mandzak and Miller of August 1959, notice of the existence of which covenant Fashion Fair and Fair Drug had, both actual and constructive; with which covenant said defendants by law were bound to comply.
The defendants, on the other hand, claim that:
(1) The provisions of plaintiff's lease of August 31, 1959, with Mandzak and Miller upon which its action is based was a personal covenant not binding on them but only on plaintiff's lessors.
(2) The term "drugs" as used in plaintiff's lease does not include the items sold by and with the consent of the defendants.
(3) They had no notice — actual or constructive — of the covenant, the restriction contained in plaintiff's lease.
(4) The plaintiff, by entering into a new lease with its lessor (on March 18, 1962) surrendered the original lease and rendered the covenant therein void.
(5) Plaintiff has suffered no irreparable injury, has an adequate remedy at law and, therefore, is not entitled to injunctive relief even if "all other previous defenses fail."
This cause is now before us for disposition having been submitted upon the pleadings, evidence, oral arguments and very able and extensive briefs of all the parties.
There seems to be little dispute as to most of the facts, little, considering that much evidence was introduced.
The serious factual dispute occurs particularly in respect to whether the defendants had actual notice of the existence of this covenant in plaintiff's lease and to a lesser degree, in respect to what was done and said by the parties' representatives preceding and at the time of and the reasons for the covenant's inclusion in the lease.
Here, whenever it becomes necessary in order to arrive at a conclusion of law based upon facts in dispute, we, or course, will resolve the factual question and state our conclusion.
We direct our attention first to the claim of defendants that this restrictive clause in plaintiff's lease was a personal covenant of plaintiff's lessors and, therefore, not binding upon them — only upon the lessors.
It is insisted that in considering whether this is a personal covenant rather than one running with the land, we must apply the principle of "strict construction." We agree with this assertion in view of the holdings of the courts to the general effect that a restrictive clause must be "strictly construed" against limitations upon the use of real estate and in favor of the free use of property. See Bove v. Giebel, 169 Ohio St. 325, Loblaw, Inc. v. Warren Plaza, Inc., 163 Ohio St. 581, 15 Ohio Jurisprudence 2d 107.
The defendants advance a number of reasons why this clause is a personal covenant. They are as follows:
(1) The restriction was not included in any instrument describing any land other than that leased to plaintiff.
It is pointed out that the clause provides that plaintiff's lessors would not sell, lease or demise any property "owned by lessors within one-half (1/2) mile" and that a description of such property is not set out in the lease. Therefore, it is urged that no interest in or encumbrance upon this land could arise.
In support of this claim we are cited to the case of Wilkins v. Irvine, 33 Ohio St. 138, in which the court stated:
"An interest in or encumbrance upon land in this state can only arise from some of the modes provided for or required by law."
(2) There can only be a covenant running with the land if it is contained in an instrument which is in the chain of title.
It is claimed that plaintiff's lease is not in the chain of title of the property leased by Fashion Fair.
Two title examiners called by the defendants testified to this effect. That is, they expressed opinions that although both plaintiff's and Fashion Fair's property are parts of the same lots and the general indices reveal that fact once the examiner checks the description he ascertains that plaintiff's property has been severed from the other portion of the lots subsequently leased to Fashion Fair and they have been taken out of the chain of title.
The defendants cite a number of cases both in their trial brief and the brief submitted at the conclusion of the trial holding that:
"The law does not charge one lot owner with constructive notice of a covenant contained in a deed not in his chain of title." Kiley v. Hall, 96 Ohio St. 374 and that
"A lessee is under no duty to search the record of other properties adjacent to the tract on which he takes a lease." King v. James, 58 Ohio Law Abs. 417.
(3) In all Ohio cases where restrictions have been held to run with the land, the restrictions are embodied in the deed or other instrument of the property against which the restriction is being enforced or they are contained in an underlying deed.
Under this heading the syllabi of the cases of Dixon v. Van Sweringen Co., 121 Ohio St. 56 and McGuire v. Caskey, 62 Ohio St. 419, are quoted.
The defendants point out that here we have no restriction embodied in any instrument under which Fashion Fair holds nor does it appear in its chain of title.
The covenant was binding on one of the plaintiff's lessors — namely, Lloyd Miller — and he was not a record holder of title to the leased property.
The evidence discloses that though Miller was one of plaintiff's lessors the only title holder to the leased property was Mike Mandzak. Miller had some arrangement with Mike Mandzak respecting the property but held no title thereto, the leased property to Fashion Fair likewise was in Mandzak's name alone prior to and at the time he conveyed it to Stevens Realty Co., Fashion Fair's lessor of record. Miller, it appears, had no interest at any time in the property leased to Fashion Fair.
The position of defendants is that the Mandzak and Miller agreement with plaintiff was not connected "with the land" since Miller owned no land and said agreement being a joint one, Miller's being personal makes Mandzak's personal. 15 Ohio Jurisprudence 2d 16 is cited in support of defendants' position.
(5) The area over which the alleged restriction extended indicates that it was a personal covenant and not a covenant intended to run with the land.
The argument here advanced by defendants is: If the covenant is considered as running with the land and applicable to the 500 acres (the area within a radius of one-half miles from plaintiff's property) then the agreement would be "injurious to the public good" and under the holding in the case of Dixon supra, it would be void and against "public policy."
(6) The fact that plaintiff did not request that the restriction be included in its subsequent lease with Wildwood Center, Inc., establishes that it did not consider the restriction as a covenant running with the land and that, instead, it considered it only as a personal covenant of Miller and Mandzak.
It is, therefore, argued that when plaintiff and Wildwood Center, Inc. (Mandzak's grantee of the same premises), executed a second lease of these same premises on March 16, 1962 (providing for additional space at additional rent), it failed to include in this second instrument a reference to the restriction in the first, thus, a clear indication was given that the parties did not consider the clause as a covenant running with the land.
(7) The limitations imposed in the clause were against selling, leasing or demising, not against use of the property. The choice of language indicates a personal covenant.
It is claimed that the restriction imposed by the covenant is on sale, leasing or demising, that is, on alienation — not on use.
It is asserted:
"That where a covenant is considered as one running with the land the language of the covenant was in the `use "of the property and not merely on the" selling, leasing or demising.'"
The following cases are given as supporting this contention: Cleveland Baptist Association v. Scovill, 107 Ohio St. 67; Aronoff v. Chase, 101 Ohio St. 331; Stines v. Dorman, 25 Ohio St. 580; McGuire v. Caskey, 62 Ohio St. 419, and Brown v. Huber, 80 Ohio St. 183.
(8) The cases from other jurisdictions support the defendant's position that this is a personal covenant.
Under this heading extensive quotations are taken from the opinions of the judges who decided what defendants' counsel labels as "a leading English case" namely Brigg v. Thornton (1904), 1 Ch. 386. There is also cited and the syllabus quoted from the case of Napa Val Wine Co. v. The Boston Block Co., 46 N.W. 239. In addition, the ruling in the case of Taylor v. Owen, 2 Blackford 301 (Supreme Court of Indiana) is given.
Fashion Fair also calls our attention to the following taken from a text book by W. Arnold Jolly on the subject matter of "Restrictive Covenants Affecting Land" at p. 21 (2nd Edition, 1931).
"Several illustrations of covenants which are personal * * * are to be found in cases of covenants by landlords as to adjoining property. Thus where A., the owner of Blackacre and Whiteacre, demises Blackacre to B., and covenants that he will not let Whiteacre for the purpose of a particular trade, or that he will not give his consent to a particular trade being carried on in Whiteacre, this does not impose a burden upon Whiteacre, and although B can enforce the covenant against his landlord A, he has no rights against a subsequent lessee or purchaser of Whiteacre."
We have, we believe, given careful consideration to all the foregoing reasons advanced by Fashion Fair why the covenant in question is personal rather than one running with the land and have consulted, or read many if not all of the authorities cited. And we conclude that this covenant has been shown both by reason and almost overwhelmingly reliable authority to be personal rather than one running with the land.
The plaintiff contends that even if it be conceded that we are dealing with a personal covenant nevertheless it should be "enforced against these defendants who had either actual or constructive notice of it."
Its position is that "Personal covenants are enforceable in equity against third parties who acquire the land with notice of the covenant."
The defendants deny they had either actual or constructive knowledge of this covenant and further that the restriction is unenforceable against them even if they had notice.
First, we must determine whether this latter assertion states the law, that is, is a personal covenant unenforceable against those not parties to but having notice of it? For if that be the law no determination, of course, need be made as to whether defendants had notice and our task is at an end and plaintiff would be denied the relief sought.
In Volume 15 Ohio Jurisprudence 2d, Covenants, Section 128, commencing at p. 118 we find the following:
"If a restriction upon the use of property is embodied in a covenant of such a nature that it will run with the land, it is without doubt binding upon all subsequent grantees. It is not necessary, however, in order to make a restriction binding on and enforceable against subsequent grantees, that it be embodied in a covenant real. On the contrary, the rule is well established that restrictions as to the use of property, * * *, are binding upon, and capable of being enforced in equity against, all those who take the estate with notice of such restrictions, though the agreement or covenant is merely personal in its nature, and though it does not purport to bind assignees."
To the same effect see Volume 14, American Jurisprudence "Covenants, Conditions and Restrictions," Section 326, pages, 659 and 660.
We have also fully considered the annotation in 23 A.L.R. 2d commencing at p. 520 to which plaintiff has cited us, and the text therein set forth. Plaintiff in its brief also quotes from the principal case preceding the annotation ( Oliver v. Hewett), 60 S.E.2d 1, which is reported in 23 A.L.R. 2d at p. 516. In substance, this case holds that in equity one is bound by a personal restrictive covenant if he takes title with knowledge of its existence, even though the deed to him did not recite the restriction.
Counsel for Fashion Fair, in its brief takes up, and discusses each of the cases cited by plaintiff as supporting its claim that a personal covenant is enforceable against a subsequent lesee (Fashion Fair) from the covenantors, Mandzak and Miller, and suggest their inapplicability. It is their claim that each was a case of one chain of title; that the property leased was the very same property on which the restriction had been placed. They point out that in the case at bar Fashion Fair does not appear in the chain of title stemming from Mandzak and Miller to plaintiff and that the lease from Mandzak and Miller to plaintiff does not constitute a part of Fashion Fair's title.
In our opinion, such distinction does not serve to weaken plaintiff's cited authorities. The fact that each was a case involving one chain of title merely has to do with the manner in which the lessee secured notice of the covenant and does not alter the controlling principle of law.
Furthermore, here the property leased to Fashion Fair was the very same property which the covenant touched and affected since, after plaintiff's lease, it was part of the property remaining with Mandzak lying within the one-half mile area covered by the covenant.
In Vol. 90 A.L.R. commencing at p. 1450 we have quite an extensive annotation entitled "Lessor's Covenant Against Competition" under IV (p. 1462), a number of cases are set forth, which, in our opinion, reveal the weight of authority as supporting the rule plaintiff asserts: That a covenant such as we have here may be enforced against a subsequent lessee from the covenantor if he has notice of the covenant.
In the case of Rosen v. Wolff, 110 S.E. 877, it was held:
"Where a lessor who has a leasehold estate in two adjoining stores leases one to a tenant, and in the lease stipulates for himself and assigns that he will not let the other store to any person for the purpose of conducting therein a business similar to that to be conducted by his tenant, such restrictive agreement is legal and valid, and in equity will bind a subsequent lessee of the second store, or his assignee, with notice of such restrictive agreement."
In Pomeroy's Equity Jur. 5th Edition, Volume 4, Section 1342 at p. 942, we find the following:
"It has been shown that restrictive covenants in deeds, leases, and agreements limiting the use of land in a specified manner, or prescribing a particular use, which create equitable servitudes on the land, will be specifically enforced in equity by means of an injunction, not only between the immediate parties, but also against subsequent purchasers with notice, even when the covenants are not of the kind which technically run with the land. The injunction in this class of cases is granted almost as a matter of course upon a breach of the covenant. The amount of damages, and even the fact that the plaintiff has sustained any pecuniary damages, are wholly immaterial."
In Volume 24 Harvard Law Review, p. 574 under "Notes" it is stated:
"The principle is settled that equity will restrain the breach of an agreement between the grantor and the grantee, restricting the use of land, both by the grantee himself, and by all subsequent purchasers of the land with notice, whether or not an easement or covenant running with the land is created * * *. It must be recognized that this principle which is purely equitable, a matter of the exclusive jurisdiction of equity, is not confined by any legal analogy, but is based on the broad principle that equity will carry out the intent of the parties. Where the parties by a valid agreement have expressed an intention to impose certain restrictions of servitudes upon the res, one who takes with notice of that agreement cannot equitably refuse to carry out that intent."
The defendants (particularly Fair Drug) cite, discuss and take considerable comfort from the case of Taylor v. Owen (Supreme Court of Indiana 1830), 2 Blackford 301, asserting that it is the only case among the many cited by the parties on "all fours" with ours. Perhaps it is, however, we believe the greater weight of authority of more modern times with their attendant complex and new commercial ventures weakens the Indiana case, the decision of which of course, does not bind us, to the extent that we are not inclined to follow it.
It is our conclusion that this personal covenant is enforceable against the defendants if they had notice of it and can be enjoined if they are found to have violated it.
This then brings us to the question: Did the defendants or either of them have notice — constructive or actual — of the covenant? Plaintiff, of course, claims they had; the defendants deny such knowledge.
First, did the recordation of plaintiff's lease of August 1959, serve to bring constructive notice of the covenant to the defendants?
The plaintiff contends that the defendants had constructive notice of the provision in its lease because it was recorded and the property occupied by both defendants and it are in the same chain of title.
Mike Mandzak, one of plaintiff's lessors, is shown by the Index of Conveyances and Encumbrances in the Office of the Recorder in Butler County, Ohio, to have been the owner of Lots 12904 and 12905. This index shows that he leased part of Lots 12904 and 12905 to plaintiff. It does not reveal which parts were so leased.
The property leased to Fashion Fair also consisted of parts of Lots 12904 and 12905. Plaintiff, therefore, asserts that since both it and Fashion Fair each leased portions of the same lots, all of said lots were in said Fashion Fair's chain of title and, therefore, it had notice of the covenant which appeared in plaintiff's lease. On the other hand, Fashion Fair argues that both leases contain metes and bounds descriptions of the lands leased and once it is determined that such description of plaintiff's premises was wholly outside of the metes and bounds description of Fashion Fair's premises no further examination of plaintiff's lease need or would be made.
The title examiners called by the defendants as experts so testified and further one of them stated that the plaintiff's lease would not be reported to his client (assuming he was examining for Fashion Fair) because it did not involve the property he was examining. In other words, these examiners were of the opinion that under these circumstances, the plaintiff's lease is not in the chain of title of the property leased to Fashion Fair.
Since the parts of the two lots which Fashion Fair leased do not include in its chain the portions of the same two lots leased to plaintiff, plaintiff's lease is not in Fashion Fair's chain, and, therefore, no constructive notice came to Fashion Fair from the recordation of plaintiff's lease. See 47 Ohio Jurisprudence 2d "Records and Recording," Section 38, p. 72. Also Baker v. Koch, 20 Ohio Opinions 2d 8, and Hayslett v. Shell Petroleum Corporation, 38 Ohio App. 164, all cited in Defendant Fashion Fair's briefs.
Therefore, we conclude that neither of these two defendants had constructive notice of the existence of the covenant found in plaintiff's lease.
Our next inquiry is: Did either or both of these defendants have actual knowledge thereof?
The answer to this question must, of course, come from the evidence presented on that issue which evidence we have carefully reviewed. We have also considered the contentions made by counsel for the respective parties made both orally and in their briefs as to the inferences and conclusions to be drawn from the evidence on that issue. Such evidence consisted primarily of the testimony of some of the people who participated in the negotiations over and the discussions concerning the Fashion Fair lease.
It is our conclusion therefrom, without reciting the evidence in detail which would unduly lengthen this already long opinion, that the evidence preponderates to the effect that Fashion Fair had actual notice that there was, in plaintiff's lease, a covenant which affected, limited and restricted the use to which it would be able to put the premises it was leasing. Perhaps it was not apprised or informed of the exact nature or wording or legal significance of the covenant in plaintiff's lease but that was not essential to put Fashion Fair on notice. The fact that there was included in Fashion Fair's lease a restriction against the sale of prescription drugs and maintaining a prescription department certainly gives rise to an inference — here unrebutted — that the defendant knew or had been informed that there was some provision in plaintiff's lease which made it necessary to include in Fashion Fair's lease that which was inserted.
Such notice we find to be sufficient to make the covenant enforceable against Fashion Fair and subjects it to be enjoined if shown to have acted in violation thereof.
Now, as to the claim that Fair Drug Company had actual notice. The evidence shows that Mr. Shapiro, president of this defendant, and also an officer of Popular Drug Company, Cincinnati, Ohio, was sent a letter by plaintiff on March 22, 1963, which letter was addressed to Lawrence Shapiro, Popular Drug Co., which letter contained the notice in question. There was no evidence that this letter was received.
It is contended by Fair Drug Co. that this communication so directed to Mr. Shapiro does not constitute notice to the drug company, it not even being addressed to it. It further makes the claim that if received by Mr. Shapiro, it was not received as an officer of Fair Drug so as to constitute notice to it. The point is further made that Fair Drug, though it did not execute this sublease with Fashion Fair until March 25, 1963, it was in possession of the premises — and paid rent from March 1, 1963, the term of said lease commenced on March 1, 1963.
Even if Mr. Shapiro received the communication, and he did not testify that he did not receive it — as an officer of Fair Drug nevertheless notice of this covenant if it came to him as president of Popular Drug Company would still give him notice as an individual and what he knows in that capacity he cannot unknow as president of Fair Drug. He should be chargeable with notice even if at the time of its receipt he was acting in the capacity of an officer of another drug company.
The fact that Fair Drug was in possession of these premises prior to the date of plaintiff's communication is of little significance since the communication was presumably received by Mr. Shapiro before the actual date of the execution of the sublease. It should be noted that the terms of the sublease particularly those which have reference as to what items Fair Drug may sell under the lease, have some bearing and throw some light upon this subject. The parties to this sublease did not, under the law, actually agree upon the same until the sublease was fully and finally executed.
Furthermore, the contention that is made by Fair Drug that "it had a leasehold interest from March 1" and that "a lease not executed in compliance with the statute when partially performed is good in equity"; and "part performance takes an instrument out of the operation of the statute of frauds," has, in our opinion, no bearing upon the question to be here resolved.
It is our opinion that the plaintiff has sustained the burden of showing that Fair Drug Company had actual knowledge of the existence of the covenant so as to make it enforceable against it, if otherwise applicable.
We must now, therefore, determine whether the defendants had been and are in violation of the covenant contained in plaintiff's lease. Such determination calls first for a construction of the language used by the parties as it appears in this restrictive clause.
We approach this issue guided by some time-honored and court tested and declared principles of law.
The first of which is set out in 15 Ohio Jurisprudence 2d, Covenants, Section 117 at pages 105 and 106.
"If a restriction is valid and is expressed in plain and unambiguous language it must be given effect in accordance with its express provisions, and the terms of the restriction are to be interpreted according to the ordinary meaning of the words, and construed with the terms of all the covenants contained in the contract or deed, as well as with the interpretation placed upon the covenant by purchasers of the lot, including the defendants."
In Section 118, p. 106 of this volume this statement is found:
"A fundamental consideration in construing stipulations restricting the use and enjoyment of real property is the intention of the parties as evidenced by the terms of the restriction and the surrounding circumstances both of the parties and subject matter."
The rule that contracts should be construed to give effect to the intention of the parties is usually limited by the rule that such intent is to be gathered from the writing. In other words, the intent must be determined by the language used in the instrument, the question being, not what the parties meant to say but the meaning of what they did say.
Another fundamental rule in the construction of restrictive covenants is that the language of the covenant is to be construed strictly against limitations upon the use of property and in favor of the free use thereof and that all doubts should be resolved against a possible construction thereof which would increase the restriction upon the use of such real estate; that if doubtful meaning attaches, the doubt must be resolved against the restriction. The rule further states that where the words of a restriction are equally capable of two or more different constructions, that construction will be adopted which least restricts the free use of the land. See 15 Ohio Jurisprudence 2d, Covenants, pages 106 and 107, 169 Ohio St. 325 and 96 Ohio St. 374.
We now will make brief reference to the evidence as to what transpired in connection with the execution of the lease in question between the parties' representatives, and the circumstances as disclosed by the evidence surrounding the execution of this instrument.
The burden of the negotiations prior to the lease's execution was carried mainly by Mr. Herman Hoskins who was president of plaintiff at the time the lease was entered into. Mr. Mandzak first approached Mrs. Crow (principal stockholder of plaintiff) respecting her company leasing the store in the area in which he owned some lots which he expected to develop commercially in connection with construction of a doctors' building and stores. It was early made known to Mandzak and Miller by Hoskins that if plaintiff leased the land in this area for a drug store to be operated by it, protection from competition would have to be afforded plaintiff by the owners.
The attorney for plaintiff's lessors prepared a typed lease which was submitted to Hoskins and this lease did not contain the words "Or any other business which sells drugs or precriptions." This language suggested by Hoskins and insisted by him to be included in the final draft of the lease was included by writing the same therein in longhand.
It seems clear that it was Hoskins' purpose to protect the plaintiff from having to compete with another business that might come into that area and engage in the sale of drugs.
The defendants urge that since a strict construction must be given to the language of the covenant and since it contains words supplied by plaintiff it must be limited "to selling, leasing or demising" of the premises within the area and not to the use thereof; that these words do not include "use" and cannot be "stretched" to include it.
We must disagree with this contention for it is our opinion that the restriction means that the property in question cannot be sold or leased to anyone who would use the property in the prohibited way.
Nor do we believe that the parties, judging both by the language employed and the circumstances under which, and the purpose for which, the leasing was undertaken in the first instance, intended that "drugs" was to be construed, as claimed by defendants, as meaning only those items which could lawfully be sold by a pharmacist but without a prescription.
Mr. Miller, one of the lessors, disclosed that Hoskins was concerned about the plaintiff having protection to its proprietary drug business. He testified that:
"We wanted to eliminate any other store that might sell drugs." Hoskins testified that he asked that the words which were inserted be written in to
"* * * cover the sale of drugs in the department stores." There had been discussion between the parties concerning a drug store coming into the area. On the other hand, the testimony would indicate that Mr. Mandzak "indicated to Mr. Hoskins that the balance of the land in all likelihood would be sold at least to the type of operation that sold aspirin, patent medicines, etc." to which Mr. Hoskins assented.
In arriving at the intention of the parties we must be careful not to rely entirely upon a single and isolated time when both lessors and lessee made certain expressions. Rather, we must consider and, therefore, have considered the sum total of all the expressions and conduct of the parties together with all the attendant circumstances, and inferences to be reasonably drawn therefrom, emanating from all their meetings and negotiations beginning at the first and concluding on the day the lease was executed. We do not, as apparently defendants do, attach significance to the fact that Hoskins, as plaintiff's president, knew that plaintiff, in the operation of its stores, separated proprietary and patent medicines from drugs which could only be handled by a pharmacist, and kept such items in different parts of its stores. We fail to see in what manner that method of operation, which probably was employed to facilitate sales could show an intention to limit the word "Drugs" to those items which could only be handled by a pharmacist. Nor can we accept defendants' contention made in the brief that:
"The plaintiff's claim as to discussion of the clause in Elliott Levey's office at the time of the execution of the Fashion Fair lease, and the subsequent inclusion in that lease of a restriction against operation by Fashion Fair of a `prescription drug department,' was an interpretation of the terminology in the Gillen-Crow lease in its most limited fashion."
A consideration of all the testimony and evidence on this subject makes it apparent that in the final analysis, what the parties meant by the word "drugs" must be determined.
Even mindful of the fact that the language must be strictly construed the conclusion cannot be escaped that considering the object sought to be accomplished, the parties intended that the word "drugs" was to be given its common, ordinary and usual meaning, certainly not the narrow, highly restricted one contended for by defendants.
Therefore, the parties intended that "drugs" would include such items as aspirin, proprietary medicines, patent medicines, vitamins, etc., and those being sold by defendants — the sale of which plaintiff seeks to enjoin. In other words, it is our opinion that the defendants, in the selling and permitting the sale of the complained of items from these premises are engaging in conduct prohibited by the covenant in plaintiff's lease.
We come now to the contention made by the defendants that plaintiff is not entitled to an injunction because it has suffered no irreparable damage, and has an adequate remedy at law and that, therefore, under the circumstances of this case this court, in its discretion should refuse to grant plaintiff the injunctive relief it prays. The position of the plaintiff is that it is not required to show actual damage in order to prevail and secure the injunction sought and that it has suffered irreparable damage.
It is certainly true that plaintiff not only has no adequate remedy at law but has none at all in so far as these defendants are concerned. Since these defendants were not parties to the lease containing the covenant in question no action at law thereon exists against them. The only relief plaintiff has against these defendants is that which they here seek, namely, to enjoin them from selling the items of which it complains.
Further, and in this connection, see the text heretofore quoted from Pomeroy's Equity Jurisprudence.
In Volume 15 Ohio Jurisprudence 2d, Covenants, Section 144, p. 145, the following is stated:
"The mere fact that there has been a breach is ordinarily sufficient ground for the interference of the court by injunction. Absence of proof of actual damages resulting from the violation of a restricted covenant does not defeat the right to equitable relief. Nor is it any answer to an action to enforce compliance with, or to enjoin the breach of, a restrictive covenant that the act complained of will not inflict injury upon the plaintiff, or even that it will be beneficial to him."
It is also to be noted that in the text 29 Ohio Jurisprudence 2d, Injunctions, Section 33, commencing p. 206, the following appears:
"The term `irreparable' as used in the law of injunction has acquired a meaning not altogether in keeping with its derivation or literal significance. It does not necessarily mean that the injury is beyond possibility of compensation in damages, or that it is very great. The irreparableness of an injury, in this sense, depends more upon the nature of the right affected or threatened than upon the pecuniary loss suffered. Generally speaking, an injury is regarded as irreparable within the meaning of the rule now under discussion when it cannot be measured in terms of money, and, if not prevented by injunction, cannot afterward be compensated by any decree which can be pronounced in the cause."
In Volume 28 American Jurisprudence, Injunctions, Section 28, pages 518 and 519, it is stated:
"One who seeks injunctive relief in a court of equity must satisfy the court, not only that he has a clear right of a character which equity will protect, but also that the act or acts complained of constitute an injurious invasion of that right which will result in or threaten actual and substantial damage * * *. But there is an obvious distinction between injury and damage, not always observed in dealing with the question of injunctive relief. Whatever invades a man's right of dominion over his property is a legal injury, whether damage ensues or not. It is a right for the violation of which the law imports damage, and courts of equity will interpose in a proper case to protect the right, without any reference to the question of actual damage; a showing of specific money damage is not necessary to support an injunction."
We have examined and considered the case of Perkins v. Village of Quaker City, 165 Ohio St. 120, cited in both the trial and final briefs of the defendants. It is our opinion, also taking into consideration the authorities herein quoted from, that the merits of the claims of the plaintiff over the defendants are not doubtful; and further that such claims herein asserted by plaintiff may not be fully asserted or determined in another and different form of action; and that plaintiff has no such adequate remedy at law precluding granting the injunctive relief sought.
The court finding no legal impediment precluding granting plaintiff the relief sought in its amended petition, grants the prayer thereof.
Judgment for plaintiff.