Belvidere South Towne Center, Inc. v. One Stop Pacemaker, Inc.

370 N.E.2d 249, 54 Ill. App. 3d 958, 12 Ill. Dec. 626, 1 A.L.R. 4th 936, 1977 Ill. App. LEXIS 3737
CourtAppellate Court of Illinois
DecidedNovember 23, 1977
Docket76-320
StatusPublished
Cited by5 cases

This text of 370 N.E.2d 249 (Belvidere South Towne Center, Inc. v. One Stop Pacemaker, Inc.) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Belvidere South Towne Center, Inc. v. One Stop Pacemaker, Inc., 370 N.E.2d 249, 54 Ill. App. 3d 958, 12 Ill. Dec. 626, 1 A.L.R. 4th 936, 1977 Ill. App. LEXIS 3737 (Ill. Ct. App. 1977).

Opinion

Mr. JUSTICE BOYLE

delivered the opinion of the court:

Plaintiff, Belvidere South Towne Center, Inc. (hereinafter “plaintiff”), brought a declaratory judgment action against the defendants, One Stop Pacemaker, Inc. (hereinafter “Pacemaker”), and Nabors of Illinois, Inc. (hereinafter “Nabors”), for the interpretation of a shopping center lease covering realty located in Belvidere, Illinois. Plaintiff is the owner and landlord of the shopping center. Pacemaker is a tenant of plaintiff and operates a supermarket and package liquor store. Nabors is a tenant of plaintiff and the operator of a drugstore which retails a wide variety of merchandise, including food products.

On September 22, 1966, Pacemaker executed a lease with plaintiff and became the first tenant in this shopping center. On October 12, 1972, Pacemaker signed another lease with the plaintiff, similar to the previous lease. This lease provided “that the leased premises shall be used and occupied by Tenant for the operation of Supermarket and Package Liquor Store and that no other similar business shall be allowed in said Shopping Center.”

Nabors is immediately adjacent to Pacemaker and entrance to either store is available through a common passageway. On September 28,1972, Nabors executed a 15-year lease with plaintiff with options to extend the lease another 15 years. Nabors’ lease provided at paragraph 10 that the “[tjenant will use and operate the demised building for the purpose of a Drug Store; provided, that Tenant shall be under no obligation to operate a pharmacy. So long as Tenant operates its pharmacy in the demised building, Landlord shall not lease any portion of property owned, directly or indirectly, by it within a five mile radius of the demised building for use as a pharmacy dispensing prescriptions.” (Emphasis added.)

Pacemaker filed an answer to plaintiff’s complaint and also filed an amended counterclaim-third-party complaint against both plaintiff and Nabors, which were later withdrawn. Nabors counterclaimed against the plaintiff, seeking a declaration that it was entitled to sell food items. Following a nonjury hearing, the trial court found that Nabors had violated the restrictive covenant in paragraph 10 of its lease, which, in the trial court’s opinion, prohibited Nabors from the sale of those items not included among the merchandise commonly sold in a drugstore. Accordingly, the trial court entered a permanent injunction enjoining Nabors from “selling on or from the premises at Belvidere South Towne Center, Boone County, Illinois, any of the following items: meats of any kind, dairy products, including, but not limited to milk, cheese and ice cream, bread and bakery goods, fresh fruit and vegetables, breakfast foods, canned goods, soft drinks, frozen foods, or any other grocery products except those of a dietary nature, or candy and gum.” The trial court also found against Nabors in its counterclaim against plaintiff. The enforcement of the judgment order and writ of permanent injunction has been stayed pending Nabors’ appeal from the judgment entered and the order denying its post-trial motion.

It is conceded that Nabors sells various food items and did not commence the sale of these food products until October of 1974. It is also admitted that the various food products that Nabors sells are competitive with the line of goods sold by Pacemaker and, therefore, if the covenant contained in Nabors’ lease providing that he shall operate a “drugstore” prohibits the sale of food products, Nabors would be in violation of this covenant.

The definitions and legal interpretation of what encompasses a “drugstore” are numerous and varied. The following is just a sample of the authorities: A drugstore is “a place where drugs are sold.” (Black’s Law Dictionary (4th ed. rev. 1968).) Webster’s New World Dictionary (2d College ed. 1970) defines a drugstore as “a store where medical prescriptions are filled and drugs and medical supplies are sold; most drugstores now also sell a wide variety of merchandise.” The term “drugstore” also has been interpreted by the courts as “an emporium devoted to the sale of many other things besides drugs, such as notions, sodas and beverages, toys, lunches, cosmetics, etc.” (Tynes v. Kelly (La. App. 1959), 116 So. 2d 54, 57. See also Crest Drug Store, Inc. v. Levine (1948), 142 N. J. Eq. 652, 61 A.2d 190; Aiello Bros. v. Saybrook Holding Corp. (1930), 106 N. J. Eq. 3, 149 A. 587.) Section 3 of the Pharmacy Practice Act (Ill. Rev. Stat. 1975, ch. 91, par. 55.3) defines a drugstore as a place where drugs, medicines or poisons are dispensed, sold or displayed; or a place where prescriptions are filled, dispensed or compounded.

The lease in the instant case did not define the term “Drug Store” and did not include any descriptive language to qualify or limit its application in this lease. Contrast First Trust & Savings Bank v. Economical Drug Co. (1928), 250 Ill. App. 112, 115, where the lease provided that the premises were to be used “for a drug store with the right to sell candy, cigars and soft drinks, and for no other purpose whatsoever.” The court stressed the fact that the covenant expressly limited the lessee’s operation of anything other than a drugstore and forbade the lessee from selling edibles.

Nabors first contends that by common usage and legal definition a drugstore may sell food items. Nabors relies on Tynes v. Kelly (La. App. 1959), 116 So.2d 54, 57, where the court interpreted a restrictive covenant in a lease which provided that the premises were to be used “as a drugstore only,” to include the operation of a lunch counter and pinball machines. Nabors also places reliance on Crest Drug Store, Inc. v. Levine, where the court construed a clause in a lease which allowed the sale of “other commodities incidental to the maintenance of a modem drugstore” to permit the tenants to sell newspapers and magazines, noting it was “a matter of common observation that commodities sold in a modem drugstore are as varied and numerous as in a general store, from alarm clocks to liquor, from hairpins to greeting cards.” (61 A.2d 190, 192.) The court further noted that it was “common knowledge as well as disclosed by the record that many drugstores in this State are department stores to a greater or lesser degree.” 61 A.2d 190, 192.

Here, however, the issue is not what the common usage or legal definition of a drugstore is or what a drugstore may sell, as Nabors contends, but whether the trial court’s interpretation of this lease is fair and reasonable based upon a consideration of its provisions and language. (Tatar v. Maxon Construction Co. (1973), 54 Ill. 2d 64, 294 N.E.2d 272.) As stated in Chicago Title & Trust Co. v. Northwestern University (1976), 36 Ill. App. 3d 165, 168, 344 N.E.2d 52, 55:

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370 N.E.2d 249, 54 Ill. App. 3d 958, 12 Ill. Dec. 626, 1 A.L.R. 4th 936, 1977 Ill. App. LEXIS 3737, Counsel Stack Legal Research, https://law.counselstack.com/opinion/belvidere-south-towne-center-inc-v-one-stop-pacemaker-inc-illappct-1977.