Harper v. Young , 123 Ark. 162 ( 1916 )

Smith, J.,

(after stating the facts). It is insisted on the part of the appellant that we have here a contract similar to the one which we construed in the case of Kahn v. Wilhelm, 118 Ark. 239, 177 S. W. 403, and that this case is controlled by the rule there announced. But we do not agree with counsel in this contention. The contracts are not similar. In the case of Kahn v. Wilhelm, we said of the lease there construed that the parties to it had agreed and covenanted that the property should be used as a hotel and saloon, and for no other purpose whatever, and that in construing the lease we had no right to strike out one of the terms there employed. It was there argued that the building could be used for a hotel, even though no saloon was kept there, and that the .property had other usable value. But in answer to this argument, it was said- that the lease was not a general one, but a special one for the purpose of operating a hotel and saloon, -and we construed that instrument as leasing the building for a single purpose, that purpose being the operation of a hotel and saloon.

The lease now under consideration does not provide as did the lease in the Kahn v. Wilhelm case, that the building should be used for certain purposes only. In fact, it appears to have been contemplated that some other use of the building might be desired, in which event such permisión could be obtained by the written consent of the lessor, the lessee paying any increased rate of insurance caused by the change of business. It is true the parties to the lease in the Kahn v. Wilhelm case might have agreed to some other use of the premises, -but the contract contemplated no such agreement, and the agreement, if made, would have been a new one outside of the original contract. Here the contract contemplates the possibility of a change in the use of the premises, and provides a manner in which that change may be accomplished. The provision in the lease requiring appellant to purchase beer from his lessor was inserted for the purpose of requiring appellant to buy beer' from his lessor, so long as he operated a saloon in the building, and it has no other effect.

Appellant proceeded on the theory that his lease was for one purpose only, and acted upon that theory in returning the keys without attempting to use the building for other purposes or asking if that could be done. His liability depends upon the correctness of his interpretation of the contract, for he stood upon that interpretation in returning the keys without attempting to use the building for some other purpose, or inquiring if he could do so. We think he should have made some other use of the building, or should have asked if this might be done, and if this permission had been refused he would, of course, have been absolved from .any obligation to pay the rent. But not having done so we must hold that the court properly directed a verdict against him for the rent due under his contract.

It is true this contract required appellant to obtain the written consent of the lessor before engaging in any other business except the operation of a saloon, but the insertion of this provision shows that the parties contemplated that such a request might be made and the terms, upon which It would be granted. While this permission might not have been granted, it can'not be assumed that it would certainly, have been refused, and we conclude, from the insertion of the provision, that the parties .contemplated the probability of this request being made, and had not contracted for a single use of the building as was done in the case of Kahn v. Wilhelm, supra.

The judgment is, therefore, affirmed.