Goodyear Tire & Rubber Co. v. Loomis Realty Co.

32 Ohio C.C. Dec. 493, 19 Ohio C.C. (n.s.) 371, 1912 Ohio Misc. LEXIS 247

• Court: Cuyahoga Circuit Court
• Decided: January 22, 1912
• Status: Published

Opinion

WINCH, J.

The dispute in this case is about a sign on the west wall of a building on Euclid avenue, in the city of Cleveland, owned by the defendant, the Loomis Realty Co.

The plaintiff claims the exclusive right to exhibit its sign on said wall, under the terms of its lease with the realty company; the realty company says the lease should be reformed so as to show clearly that the plaintiff is not entitled to the exclusive privilege of a sign on said wall; the defendant the B. F. Goodrich Co. claims a right to maintain a sign on said west wall under an agreement with the realty company later in date than the. lease of plaintiff.

Plaintiff is tenant of the westerly store rooms in the building, which is two stories high, and, without any agreement in the lease, it would have the exclusive right to place signs on the lower half of said westerly wall because it is appurtenant to the premises demised to it. 24 Cye., 1047.

The Goodrich Co. is tenant of storerooms further east on Euclid avenue. Having leased the westerly store to plaintiff, and plaintiff having taken possession thereof, the realty company had no right thereafter to give the Goodrich Co. any sign •rights on the first story of the west wall, unless it reserved said rights under the terms of the lease, the important clause of which reads as follows:

“It is agreed that there shall be no signs placed on the building, except in the spaces for signs on the Euclid front and that the party of the second part may desire to have lettered in gold or silver letters on the plate glass window or doors, except that the party of the second part is given the exclusive right to place its own sign on the west side of the building occupying a space not exceeding 40 feet in depth from the front corner of the building, and the full height of the building, which wall sign may be illuminated at the expense of the party of the second part, should the second party so desire.”

This language is plain and requires no construction. The first clause, “It is agreed that there shall be no signs placed on the building, except in the space for signs on the Euclid front,” etc., is a covenant on the part of the lessor as well as a restriction upon the rights of the lessee, and would forbid any sign on the west wall, were it not for the exception in the last clause, that the plaintiff “is given the exclusive right to place its own sign on the west wall of the building,” etc.

No evidence has been produced before this court that there was- any mutual mistake in inserting said clause in the lease, and the cross-petition of the realty company, asking for reformation, is dismissed.

Plaintiff’s lease is dated March 3, 1911; it entered into the possession of its store rooms April 1, 1911; about the middle of the month it painted a sign forty feet wide and two stories high on the front end of the west wall; thereafter the realty company attempted to grant sign space on the west wall to the Goodrich Company, and on May 3, 1911, somebody started to paint a sign fifty feet long and two stories high next to the plaintiff’s sign.

The plaintiff immediately protested to the realty company, and two days later, it appearing that the sign would advertise the Goodrich Co., plaintiff, on May 6, 1911, requested the Goodrich Co. to remove its sign, which by that time was complete.

The Goodrich Co., while not claiming any prior contract rights, for the agreements of neither party were recorded at that time, still insisted that it should be permitted to keep its sign in place, because it spent some $150 in painting it, before plaintiff ordered it to stop.

There is no merit in this defense. The Goodrich Co., when it started to paint its sign, knew that the lower half of the west wall belonged to plaintiff, for it saw plaintiff in possession of the west store. This was notice enough of plaintiff’s sign rights on the.lower half of the wall, and if the realty company represented to the Goodrich Co. that the plaintiff had surrendered any part of said right, the Goodrich Co. might have advised itself of the exact terms of the contract, by inquiring of plaintiff. It was apparently a trespasser on this space, and acquired no more rights to the lower half of the wall than a trespasser.

The upper half of the wall is in like case:

Seeing plaintiff’s sign covering 40 feet of the upper half of the wall, the Goodrich Co. was put upon notice and should have inquired of plaintiff, before painting the sign in question, what right the plaintiff had there.

No estoppel here arises; plaintiff did nothing to encourage the Goodrich Co. to paint its sign, nor was it guilty of any laches which should now bar it of the relief prayed for.

Plaintiff immediately notified the lessor not to paint the sign and within three days, having found out who the aggressor was, it notified-the Goodrich Co., which was reasonable dispatch in the premises.

Nor was there any waiver of rights on the part of the plaintiff.

Estoppel, laches and waiver are doctrines applied where the ■equities require it, but the Goodrich Co. having failed to .prove any legal right to maintain its sign superior to that of the realty company, growing .out of lack of notice, and the realty company having covenanted with regard to the matter, its covenant will be enforced.

Judgment for plaintiff as prayed for.

Marvin and Niman, JJ., concur.