Apollo Cigar Co. v. O'Brien

Hamilton Circuit Court

Apollo Cigar Co. v. O'Brien

20 Ohio C.C. Dec. 710, 11 Ohio C.C. (n.s.) 63, 1908 Ohio Misc. LEXIS 151

DecidedFebruary 15, 1908

StatusPublished

This text of 20 Ohio C.C. Dec. 710 (Apollo Cigar Co. v. O'Brien) is published on Counsel Stack Legal Research, covering Hamilton Circuit Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Apollo Cigar Co. v. O'Brien, 20 Ohio C.C. Dec. 710, 11 Ohio C.C. (n.s.) 63, 1908 Ohio Misc. LEXIS 151 (Ohio Super. Ct. 1908).

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Opinion

GIFFEN, J.

It appears from the petition that the plaintiff leased from the ■defendant, O’Brien, “the first floor and basement of the four-story brick building known as No. 11 East Sixth street, and forming a part •of the Hotel Savoy building, from Nos. 5 to 15 inclusive, East Sixth ■street, Cincinnati, Ohio,” and that in the lease he agreed for himself and his assigns—

“That he will not rent any of the storerooms connected with the Hotel Savoy building, numbered 5 to 15 inclusive, East Sixth street, for a cigar and tobacco business, during the occupancy of this plaintiff herein, excepting that the defendant, Robert J. O’Brien, expressly reserved the right to sell cigars, tobacco, smoker’s articles, magazines and periodicals at a stand not to exceed eight feet in length in the hotel ■office, at the bar connected with the said hotel, and from a stand in a restaurant, if one should be established and a cigar stand desired, [711]*711which latter stand was also not to exceed eight feet in length, the said stands to be located at the hotel office desk, and the restaurant cashier’s desk. ’ ’

The first part of the above allegation sets up a restriction of the right of the lessor to rent any of the other store rooms for a cigar and tobacco business. It does not in terms nor by implication refer to or apply to the hotel office or lobby. The rest of the allegation states an apparent exception to or reservation in the restrictive clause, but can have no application as such unless the lessor or his assigns should conclude to establish a restaurant in one of the aforesaid storerooms. In other words, the lessor had conveyed no right pertaining to the hotel office nor restricted the use thereof in any way that would require or permit an exception or reservation. It may be said, however, that from the designation of a specific location and size of the cigar ;stand in the hotel office, an intention to so restrict it may be inferred;' ■but it seems well settled in cases of this kind all doubts must be resolved in favor of natural rights and against restrictions thereon. If dhere is doubt as to the meaning of the covenant, it must be resolved adversely to the restriction, but in determining its meaning, that must •be found from the language used, which is not to be extended or enlarged by implication.. Postal Telegraph-Cable Co. v. Telegraph Co. 155 Ill. 335 [40 N. E. Rep. 587].

The erection and maintenance'in the hotel lobby of a cigar stand ■sixteen feet in length by the Hotel Savory Co., one of the lessor’s assigns, is not therefore a breach of the covenant in the lease, and the demurrer to the petition will be sustained.

Swing and Smith, JJ., concur.

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GIFFEN, J.

It appears from the petition that the plaintiff leased from the ■defendant, O’Brien, “the first floor and basement of the four-story brick building known as No. 11 East Sixth street, and forming a part •of the Hotel Savoy building, from Nos. 5 to 15 inclusive, East Sixth ■street, Cincinnati, Ohio,” and that in the lease he agreed for himself and his assigns—

“That he will not rent any of the storerooms connected with the Hotel Savoy building, numbered 5 to 15 inclusive, East Sixth street, for a cigar and tobacco business, during the occupancy of this plaintiff herein, excepting that the defendant, Robert J. O’Brien, expressly reserved the right to sell cigars, tobacco, smoker’s articles, magazines and periodicals at a stand not to exceed eight feet in length in the hotel ■office, at the bar connected with the said hotel, and from a stand in a restaurant, if one should be established and a cigar stand desired, [711]*711which latter stand was also not to exceed eight feet in length, the said stands to be located at the hotel office desk, and the restaurant cashier’s desk. ’ ’

The first part of the above allegation sets up a restriction of the right of the lessor to rent any of the other store rooms for a cigar and tobacco business. It does not in terms nor by implication refer to or apply to the hotel office or lobby. The rest of the allegation states an apparent exception to or reservation in the restrictive clause, but can have no application as such unless the lessor or his assigns should conclude to establish a restaurant in one of the aforesaid storerooms. In other words, the lessor had conveyed no right pertaining to the hotel office nor restricted the use thereof in any way that would require or permit an exception or reservation. It may be said, however, that from the designation of a specific location and size of the cigar ;stand in the hotel office, an intention to so restrict it may be inferred;' ■but it seems well settled in cases of this kind all doubts must be resolved in favor of natural rights and against restrictions thereon. If dhere is doubt as to the meaning of the covenant, it must be resolved adversely to the restriction, but in determining its meaning, that must •be found from the language used, which is not to be extended or enlarged by implication.. Postal Telegraph-Cable Co. v. Telegraph Co. 155 Ill. 335 [40 N. E. Rep. 587].

The erection and maintenance'in the hotel lobby of a cigar stand ■sixteen feet in length by the Hotel Savory Co., one of the lessor’s assigns, is not therefore a breach of the covenant in the lease, and the demurrer to the petition will be sustained.

Swing and Smith, JJ., concur.

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20 Ohio C.C. Dec. 710, 11 Ohio C.C. (n.s.) 63, 1908 Ohio Misc. LEXIS 151, Counsel Stack Legal Research, https://law.counselstack.com/opinion/apollo-cigar-co-v-obrien-ohcircthamilton-1908.

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