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Keyes v. Carrick

March 26, 1954



This declaratory judgment action involves the construction of two contracts by which the appellees, J. C. Carrick and his wife, Anna Pearce Carrick, leased two separate storerooms in their building on Main and Limestone Streets in Lexington. The judgment declares invalid an assignment of one of the leases and requires the appellant, Edward Kessler, to surrender possession of the premises occupied by him.

The building in question is divided into five separate storerooms, each of which is occupied as a unit by a different lessee. The two rooms involved in this action are designated throughout the record as No. 101 and No. 105.

On October 24, 1944, room No. 105 was leased to Robert Zeff, David Zeff, and Nathan Zeff for the purpose of conducting a retail jewelry store. The original term of the lease was five years, but it has been extended from time to time and the current extension expires on June 1, 1959. The Zeffs subsequently assigned their lease to appellee, Roberts Jewelry Company, which is the present occupant of storeroom No. 105. This lease contained the following provision which remained unchanged by the subsequent extensions:

"Lessors will not rent to any person, firm or corporation premises in the same building in which the leased premises herein are located during the period of this lease for any purpose inimical to the purpose herein granted lessees.'

On May 6, 1949, the Carricks leased storeroom No. 101 to Freeman Keyes and W. B. Owens for a period of five years with an option to renew for an additional ten years. Owens, who is no longer in the picture, subsequently assigned his interest to Keyes. This lease contained the following provision concerning the use of the premises:

"Said premises are rented the lessees to conduct a mercantile business, and for the sale of nuts, and similar merchandise, and such sundry merchandise as is or may be dealt in by lessees in the demised premises. The lessees, however, shall not be permitted to conduct a restaurant in said building.'

There is the further provision concerning the right to sublease or assign the lease:

"The lessees may sublease the premises or any part thereof, at any time during the term of this lease, or may assign this lease for a whole or a part of the term, provided, however, that the subtenant or assignee shall be required to abide by any and all of the terms of this lease, and shall be subject to the approval of the lessors in advance, * * *.'

These lessees took possession of the premises and began operation of a retail nut shop under the trade name of "Renfro Valley Nut House.' This business proved unprofitable and in the spring of 1951 the lessees became anxious to find a purchaser to whom they could assign their lease or sublet the premises. Two prospective purchasers were contacted, but the Carricks refused to consent to an assignment or sublease because the proposed purchasers each contemplated the operation of a jewelry store. The disapproval was indicated in each instance by a letter from J. C. Carrick to Mr. Keyes.

Sometime in August 1951, appellant Kessler contracted Mr. Keyes, who lived in Chicago, concerning his desire to purchase the lease on storeroom No. 101 for the purpose of operating a retail jewelry store. Kessler had previously been employed by the Zeffs but learned that they were selling their store. He was informed that approval from the Carricks was necessary before an assignment of the lease could be made.

On or about August 20, 1951, Mr. Kessler went to the office of Mr. Carrick and told him of his tentative desire to acquire the Keyes lease for the operation of a jewelry store. He informed Mr. Carrick that he did not wish to compete with the Zeffs but was interested in the lease in the event they sold their store. Mr. Carrick orally approved of him as a prospective tenant and offered no objection to the business which he proposed to operate. On August 23, 1951, Mr. Carrick wrote a letter to Mr. Keyes, stating that Mr. Kessler had been in his office and that "he impressed me as being a very nice person. I have known him for some time -- as he was in one of my stores at one time. I think he is thoroughly reliable.' In the same letter, he advised Mr. Keyes as to the value of his lease, stating, "I also heard that you were offered $9,000 for this lease -- but I feel that the lease is worth more than that amount.'

A few days later, Kessler made a second trip to Mr. Carrick's office to confer with him concerning the availability of the store space and his qualifications as a tenant. Again, no disapproval was indicated, and the parties examined the Zeff lease and the effect of the word "inimical' as it appeared therein was discussed. Mr. Carrick stated at that time that he did not think he would have any trouble concerning this provision.

Some time later, Kessler learned that the Zeffs had concluded a sale of their store to appellee, Roberts Jewelry Company. He then went to the office of Mr. Carrick on September 20, 1951, and informed him that he was ready to acquire the Keyes lease if the proposed transfer met the lessors' approval. Mr. Carrick then dictated and signed a letter which was delivered to Mr. Kessler. In view of the fact ...

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