Handleman v. Pickerill

Plaintiff, as sublessee, brought suit against the defendants for injunction from obstructing

On October 21, 1919, the defendants Pickerill and Scott entered into a written lease with California Chocolate Shops, letting the ground or street floor of a building to be erected by the lessors. The lease contained the following language: “excepting from said ground floor sufficient space at the west end thereof for an entrance to the upstairs of said building, and to the elevators to be constructed therein, said excepted space not to exceed in dimensions fifteen (15) feet frontage on West First street by fifty (50) feet in depth.” The term of the lease was for fifteen years, commencing on the first day of April, 1920. On the date of execution, the lease in duplicate was deposited in escrow under instructions executed by the parties thereto, providing for the delivery of said copies of the lease to the respective parties when the escrow agent should be notified in writing by said parties that the plans and specifications for the building to be erected upon said premises had been agreed upon by both parties thereto. On December 12, 1919, the plans and specifications were duly approved by the parties to said lease, and the escrow agent was authorized and directed by written instructions to deliver to the respective parties copies of said lease. The said lease provided that “the lessee covenants and agrees, at its own cost and expense, to install in and upon the premises demised, that is to say, upon the ground floor of said building, all show windows, display fronts, ...” It was further provided by said lease that “The lessors shall, at their own cost and expense, construct the entrance hereinabove provided for, and all of the equipment and interior thereof, and the lessee shall not be put to any expense whatsoever for or in connection with such entrance, the construction or equipment thereof.” It was further provided that “The lessee shall not make or permit to be made any changes or alterations in or additions to said demised premises which affect an integral part of said building without first having obtained the written consent of the lessors thereto.” The lease further provided: “The lessee is hereby expressly given and granted the right to sub-let the whole or any portion of the premises herein demised.” It was further provided that “Each and all of the terms, covenants and

“That said show window was not so placed or constructed by plaintiff’s said lessor, with the knowledge, consent, aequiesence or approval of the defendants Pickerill, Scott & Welch, or either of them, except that during the construction thereof, upon an objection being interposed by the said defendants Pickerill, Scott & Welch, it was agreed between said defendants and California Chocolate Shop that said window might be constructed so as to open into said lobby upon the express condition that the use of said window and the maintenance thereof should not in anywise interfere with the free and uninterrupted use of said lobby and entrance by said defendants Pickerill, Scott & Welch, in such manner

On October 31, 1920, plaintiff entered into possession of said storeroom and installed therein a shoe store, and in the conduct of his business used the said show-window to display his shoes for sale. Defendants Scott and Welch testified that prior to the thirty-first day of October, 1920, defendants had no notice or knowledge, either actual or constructive, of the execution of said lease between plaintiff and the California Chocolate Shops. On March 1, 1921, defendants Pickerill, Scott, and Welch leased to the defendant Charles Zimmerman a space in said entrance and vestibule, and defendant Zimmerman erected a booth in front of the westerly pane of said display window, by reason of which observation of plaintiff’s show-window was prevented in part and merchandise therein could not be clearly seen from the west by persons using said entrance. Over the objection of plaintiff, two of the defendant’s witnesses were permitted to testify as to conversations had between the original lessors and the agent for California Chocolate Shops, the original lessee. Also, the plans and specifications for the construction of the building were admitted in evidence over plaintiff’s objection. These plans and specifications did not provide for any show-window between the storeroom and the entrance lobby, but showed a solid partition. During the course of construction, the general contractor employed by the original lessors, under instruction of' the agent of the original lessee, California Chocolate Shops, left a space in this partition for a show-window. Defendant Welch testified that upon observing this opening in the partition he protested to the original lessee’s agent, saying, “You know, Mr. Swan, we have intended all the time to lease that for a cigar stand or some other business purpose,

Appellant contends that the language contained in said lease, as follows, “excepting from said ground floor sufficient space at the west end thereof for an entrance to the upstairs of said building, and to the elevators to be constructed therein,” is to be construed as a reservation and not as an exception. Technically, the term “excepting” “applies to something which constitutes a part of the thing described as granted and which would pass but for the excepting clause, the office of which is to exclude it from the thing described, and the title to the thing excepted remains in the grantor. The difference between the term ‘excepting’ and ‘reserving’ is so slight and shadowy that in common parlance they are used interchangeably, ‘and the technical meaning will give way to the manifest intent, even though the technical term to the contrary be used.’ (13 Cyc. 674.) ” (Van Slyke v. Arrowhead etc. Power Co., 155 Cal. 675 , 680 [ 102 Pac. 816 ]. See, also, Pitcairn v. Harkness, 10 Cal. App. 295 [ 101 Pac. 809 ].) However, for the purpose of the decision of this case, we do not find it necessary to determine whether this is an exception or a reservation, since even if the language be construed as a reservation and a covenant to use, the space exclusively for an entrance, it would not be enforceable by a subtenant against the original lessor, as no privity of contract or estate exists between the sublessee and the original lessor. (15 Cal. Jur., p. 766; Ericksen v. Rhee, 181 Cal. 562 , 567 [ 185 Pac. 847 ]; Bailey v. Richardson, 66 Cal. 416 , 421 [ 5 Pac. 910 ] ; City Investment Co. v. Pringle, 73 Cal. App. 782 , 788 [ 239 Pac. 302 ]; Buttner v. Kasser, 19 Cal. App. 755 [ 127 Pac. 811 ].) “As between the original lessor and the sub-lessee there is no privity of contract or estate, and therefore the sublessee does not acquire, as a general rule, by virtue of the sublease merely, any right to enforce the

Appellant argues that defendants are estopped by their conduct and silence from closing this window. A sub-lessee can in no event have any greater rights against the lessor than are given by the original lease to the lessee. (35 Corpus Juris, 1002.) It is the duty of a person contracting for a sublease to ascertain the provisions of the original lease, as a subtenant is charged with notice of the existence of the original lease and is bound by its terms and conditions. (15 Cal. Jur. 767; Baranov v. Scudder, 177 Cal. 458 [ 170 Pac. 1122 ]; Georgeous v. Lewis, 20 Cal. App. 255 [ 128 Pac. 768 ].) In the case at bar, while the original lease gave the right to the original lessee to construct the display windows, nothing was said about their location.. Ordinarily, display windows are placed in the front of the storeroom, although such windows are often built facing entrances or lobbies on the side of the storeroom. Under the evidence showing the delivery of the original lease only after agreement of the parties on plans and specifications providing for a solid wall, with no display window fronting toward the entrance, and under further evidence showing that this display window was constructed under orders of the original lessee over the protest of the lessors and without their consent, the original lessee would have no right of action against the lessors for closing up the window. A sublessee can have no right superior to that of the lessee. The building was under process of construction when the subtenant executed his lease. Plaintiff must have known that the building was being erected under plans and specifications and he was bound by their provisions, as was the original lessee. We find nothing in the conduct of the defendants estopping them from closing this window in accordance with their declared intention.

Appellant in his reply brief states that the action is not based on any covenant in the lease to keep the window open,

Other points raised by appellant are necessarily disposed of by the foregoing conclnsions.

It is ordered that the judgment he affirmed.

Houser, Acting P. J., and York, J., concurred.