Postal Telegraph-Cable Co. v. Western Union Telegraph Co.

40 N.E. 587, 155 Ill. 335

Opinion

Mr. Justice Phillips

delivered the opinion of the court:

The material question arising on this record is as to the construction and effect of the clause in the second lease, as follows: “During the said term the lessor will not lease offices in said building to any other telegraph company for use as a telegraph office, without consent of the lessee.” The contention of the appellant is, that it is a restrictive covenant, limiting and restricting the use of the entire building for telegraph offices to itself, and the use for that purpose by the lessor or its assigns would be a breach of that covenant which a court of equity should enjoin, regardless of the extent of the injury which might result from its breach.

The covenant prohibits the lessor from leasing any of the offices in said building for a telegraph office to be used by another company, and is therefore in restraint of a beneficial use of the real estate. Restrictions on the power of alienation have long been unfavored, and the policy of this State has ever been hostile to them, and this principle is so firmly engrafted on our polity that such covenants will be construed with the utmost strictness, to the end that the restraint shall not be extended beyond the express stipulation; and all doubts, as a general rule, must be resolved in favor of a free use of property and against restrictions. This principle has come to be the settled rule of most of the States, as it is also of England. Hutchinson v. Ulrich, 145 Ill. 336; Eckhart v. Irons, 128 id. 568; Boyd v. Fraternity Hall Ass. 16 Ill. App. 574; Livingston v. Stickles, 7 Hill, 253 ; Brugman v. Noyes, 6 Wis. 1; Crusoe v. Bugby, 2 W. B1. 776; 1 Washburn on Eeal Prop. 317; Taylor on Landlord and Tenant, sec. 402; 4 Kent’s Com. 131.

In Eckhart v. Irons, supra, it was held: “If there is any doubt whether the restrictions were to cease then (at the end of fifteen years) or whether they were to be permanent, the existence of the doubt is to deny the existence of the easement or privilege. All doubts must be resolved in favor of natural rights, and against restrictions thereon.” This language is quoted with approval in Hutchinson v. Ulrich, supra, where it is further said: “In this country real estate is an article of cdmmer.ee. The uses to which it should be devoted are constantly changing as the business of the country increases and as its hew wants are developed; hence it is contrary to the well recognized business policy of the country to tie up real estate, where the fee is conveyed, with restrictions and prohibitions as to its use, and hence, in the construction of deeds containing restrictions and prohibitions as to the use of property by a grantee, all doubts should, as a general rule, be resolved in favor of a free use of property and against restrictions.” If there 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.

In Consolidated Coal Co. v. Schmisseur, 135 Ill. 371, it was held: “We have been referred to no case holding that a court of equity would exercise its jurisdiction to prevent a breach of a negative covenant unless it was express, or could fairly be implied from the stipulation of the parties, and injury would result to complainant by its breach. * " The party not having seen fit to expressly stipulate against the act in his contract, a court of equity will not, by implication, insert it, and then enforce it, unless substantial injury is thereby to be prevented.” Wood on Landlord and Tenant, 521; Sheets v. Selden, 7 Wall. 416; DesMoines Railway Co. v. Wabash Railway Co. 135 U. S. 576.

The covenant does not place any restriction on the use of the building by the owner, further than an inhibition to leasing any offices for use as a telegraph office by another company, and a court cannot interpolate into that contract something it does not contain, and make it apply to the use of the building instead of the leasing to another.

Kemp v. Bird, 5 Ch. Div. 549, was a case where Bird had leased premises to Pairweather, who had assigned to Kemp, for use as a coffee-house, with a covenant not to demise or let any house on the same street for a like use during the term. Afterward Bird leased to one Slye another house on the same street, with a covenant not to engage in any business there without Bird’s consent, and with Bird’s consent Slye assigned to Godfrey, who established a coffee-house therein. Kemp filed a bill for injunction, based on the covenant in his lease, and the injunction was denied, because the covenant prohibited only the letting, and not the use or sale, of the property for the specified purpose, and on appeal the decision was affirmed, and it was said by James, L. J.: “I am of opinion that the judgment of the learned judge in this case cannot be disturbed, Persons ought to look after their own interests in framing their own covenants. Persons who are men of business, as they were here, are able to get protection and advice, and they must make their covenants express, so as to state what they really mean, and they cannot get a court of law or of equity to supply something which they have not stipulated for, in order to get a benefit which is supposed to have been intended. Here, the words are very plain, and the covenant is intelligible and reasonable as it stands, (as Mr. Justice Fry has observed,) whatever may be the extent or effect of it. It is, that the said G. Bird shall not, during the said term, demise or let any or either of the messuages or tenements now forming the said street, called London street, Padding-ton, between Arthur News and Francis News, to any person whomsoever, for the purpose of carrying1 on the trade or business of an eating-house, etc. He may not demise it or let it for that purpose. * * • * If it had been intended that there should have been a positive restriction on the use of the premises during the term, there is a well-known form which the parties might have used, which would have been binding on the owner and on his representatives and on the assignee,—that is, that the said G. Bird, his heirs, executors, administrators and assigns, shall not, during the said term, demise or let, or permit any of the said messuages or tenements to be demised or let, and so on. It is quite clear that Bird did not intend to enter into such a covenant. By what right are we to extend this covenant beyond the words in which it is expressed—that is, that he shall not demise or let ? He has not demised or let.” Baggallay, L. J.: “I am of the same opinion. The appellant contends that Mr. Justice Fry has acted on the strict construction of the covenant and of the other provisions contained in the lease, whereas he ought to have had more regard to what was the evident object and intention of the parties. I know of no possible way, when it is alleged that there have been breaches of contract, of finding out what was the intention of the parties, than by looking at what is found in the covenant itself. The appellant is desirous to deduce from those terms something far beyond what the document itself puts forth, and if once we were to adopt that method in this court we should introduce very great confusion into the construction of documents of this kind.” Cotton, L. J,; “I cannot see that it can be said, with any fairness, that there is a general covenant by Bird not to allow the house to be used for the purpose of an eating-house ; and I think that the covenant with Godfrey was not a covenant entered into for the benefit of the plaintiff, but was for the benefit of the landlord, to be enforced as he might see fit.”

In Apsdin v. Austin, 5 Q. B. 671, the plaintiff agreed to manufacture for the defendant cement of a certain quality, and the defendant, on condition of the plaintiff’s performing such engagement, promised to pay him four pounds weekly during the two years following the date of agreement and five pounds weekly during the next year following, and to receive him into partnership at the expiration of three years. Within less than two years the defendant discharged the plaintiff, who sued for damages, alleging an agreement to employ him for three years. The declaration was held bad on demurrer, Lord Denman delivering the judgment. He says: “Upon the face of this agreement it is certainly true that in terms there is no stipulation for retaining the plaintiff in the defendant’s service; but it is alleged for the plaintiff that, in substance, it is a contract of hiring and service of a special kind, and that an agreement to retain during three years is necessarily to be implied from the express stipulation for weekly wages during that period. "* * * It is a manifest extension of the principle to hold that, where parties have expressly covenanted to perform certain acts, they must be held to have impliedly covenanted for every act convenient or even necessary for the perfect performance of their express covenants. When parties have entered into written engagements with express stipulations it is manifestly not desirable to extend them by any implication. The presumption is that, having expressed some, they have expressed all the conditions by which they intend to be bound under that instrument. It is possible that each party to the present instrument may have contracted on the supposition that the business would in fact be carried on, and the service in fact continued, during the three years, and yet neither party might have been willing to bind themselves to that effect; and it is one thing for the court to effectuate the intention of the parties to the extent to which they may have, even imperfectly, expressed themselves, and another to add to the instrument all such covenants as upon a full 'consideration the court may deem fitting for completing the intentions of the parties, hut' which they, either purposely or unintentionally, have-omitted. The former is but the application of a rule of construction to that which is written; the latter adds to the obligations by which the parties have bound themselves, and is, of course, quite unauthorized, as well as liable to great practical injustice in the application.”

In Consolidated Coal Co. v. Schmisseur, supra, it was held: “In bur judgment the contract is susceptible of no other construction than that the grantees and their assigns have the whole term of thirtj^-five years in which to mine and remove the coal underlying appellee’s land, without limitation or restriction. The condition is, simply, that if they shall, before the expiration of the term, exhaust the coal, possession is to be surrendered. Appellee might have imposed terms requiring exhaustion of the coal as rapidly as it could be mined, or that a stipulated amount should be taken out per month or per year, or some like provision; but she did not do so. The contract is wholly silent upon that subject, and contains no provision requiring the removal of the coal before the end of the term. * * * The provision in the contract under consideration, in respect of the leasehold interest, is, simply, that it is granted for the purpose of enabling said purchasers to sink pits or shafts, and successfully mine and remove the coal conveyed to them by appellee. Unquestionably, appellee might, had she seen proper, have restricted the use of the land leased by express stipulation, and have required the lessees to covenant against any use she might have deemed antagonistic to her interests. She did not do so.”

The principle announced in these cases is sustained in Sheets v. Selden, 7 Wall. 416, Livingston v. Stickles, supra, and Field v. Mills, 33 N. J. L. 254, where it is held that an assignment is not a violation of a covenant in a lease not to under-let. To the same effect is Fox v. Swann, Styles, 482. The principle announced in the above cases is in consonance with the policy of the removal of restraints on alienation, and strict construction of restrictive covenants.

We hold the clause in the lease did not prevent the owner of the building from using the building or offices therein for the purpose of a telegraph office, and when the Western Union became the purchaser of the property and a conveyance was made to it, it had the right, as owner, to use offices therein as a telegraph office, and in so doing was not leasing offices to another company for use as a general telegraph office, and hence, in so using them, was not violating any of the covenants of the lease. Cases that are strictly included within the terms of the language employed in the covenant may be enjoined, and the numerous cases cited in the very able briefs of counsel for the appellant are of that character. Without attempting to analyze and discuss those cases, we find no principle announced in any well considered case in conflict with what is here held.

From a careful examination of this question we are of opinion that there was no error in the decree of the circuit court nor in the judgment of the Appellate Court, and that judgment is affirmed.

judcjmeni affirmed.