
    Compañía Teatral de Santurce, Plaintiff and Appellant, v. Ramón Lloveras Soler et al., Defendants and Appellees.
    
      No. 4582.
    Argued February 1, 1929.
    Decided November 14, 1929.
    
      Tons Solo & Quimones, for appellant. Juan B. Soto and G. Pesquera, for appellee.
   Mr. Justice Audrey

delivered the opinion of the court.

Compañía Teatral de Santnree filed a complaint against Ramón Lloverás Soler and Francisco Rodríguez based on two causes of action. It was alleged in the first that Ramón Lloverás Soler in his capacity as owner of a house, which is described and has an area of 696.87 square meters, leased the same together with the theatre and cinema installation therein to Francisco Rodriguez for a term of five years Vhich expired on May 31, 1928; and that it had been stipulated between the parties that the lessee bound himself to keep in a good state of repair and clean condition the leased premises as well as the furniture and fixtures appertaining thereto, and to return the property in the same good com dition in which he had received it. Plaintiff further alleged that on the very day the contract was executed Rodriguez assigned -it to the Compañía Teatral de Santurce with the knowledge and acquiescence of the lessor Lloverás, who has since continuously recognized plaintiff as successor to all the rights and obligations arising under the lease, subrogated in place of Rodriguez, who was thus eliminated from the contract; that plaintiff and Rodriguez have performed their obligations under the lease and that Lloverás refuses to maintain or allow the Compañía Teatral de Santurce in the peaceful possession and enjoyment of the leased property. It was alleged in the second cause of action that in 1926 Lloverás sued Rodriguez in unlawful detainer for failure to pay the rent and obtained a judgment ordering him to vacate the premises and its accessories, without the Compañía Tea-tral de Santurce having ever been served with notice of the complaint in the action; that all the rent instalments had been deposited in court in the unlawful detainer proceedings and withdrawn by Lloverás without any protest or reservation whatsoever on his part; and that Lloverás now seeks the execution of a judgment against Rodriguez by evicting the plaintiff company from the aforesaid property.

On the above allegations the plaintiff prayed that the district court declare the lease assignment made by Rodriguez in favor of the plaintiff company to be valid and binding; that it order Lloverás to perform the contract of lease for the benefit of the company, as assignee of Rodriguez; that it decree and adjudge that the judgment in the unlawful detainer action against Rodriguez does not affect the plaintiff herein, and that the cause of action therein has abated; and that it enjoin Ramón Lloverás Soler from executing the said dispossess judgment in so far as it may affect the plaintiff.

In the instant case it is denied in the verified answer of Lloverás that Rodriguez had assigned his contract to the Compañía Teatral de Santurce; that Lloverás had been notified of any assignment of the said contract; that he had consented to such assignment; or that he has recognized plaintiff as a successor of his tenant, Rodríguez. The defendant did not deny having obtained a dispossess judgment against Rodríguez, and. submitted no prayer for affirmative relief.

Thereafter Lloverás filed in the court a petition for injunction in which he alleged that pursuant to the contract of lease, which according to the plaintiff had been assigned to it, the lessee was bound to keep the premises, furniture, etc., in a clean and good condition; that plaintiff had neglected the property to such an extent that the same was in a ruinous condition, with the roof completely rotten and on the point of falling in and that if it fell it would shake the walls, destroy the floors, balconies, inside partitions, and furniture and cause the death of many human beings; and that the cinema business would be wholly destroyed thereby ■causing him irreparable damage. He concluded with a prayer that plaintiff be commanded to build the roof of the building including its rafters and to repair the floors, doors and windows thereof or to replace them with others.

Plaintiff opposed the petition, but the court, after hearing the evidence, granted the preliminary injunction asked and on March 6, 1928, (two months before the expiration of the lease) ordered the Compañía Teatral de Santurce to rebuild the roof of the building and the inside partitions and to repair the floors, doors and windows of the building, and imposed the costs on the company.

From that order the plaintiff company took the present appeal without sending up the evidence heard.

Were it not that the appellant has been mulcted in costs, we would dismiss the appeal as academic because, the lease having expired in May of last year, the appellant, being no longer a lessee, could not in that capacity be required to execute the work.

Although the plaintiff, appellant herein, alleges in its complaint that it is an assignee of the lease executed by Llo-verás to Rodríguez and that it succeeded to all the rights and obligations of Rodriguez thereunder with the knowledge of the lessor, the latter denies in his answer that capacity to the plaintiff; consequently, since lie does not recognize plaintiff as Ms tenant by substitution be bas no canse of action to exact from it tbe performance of any duties as sucb tenant, especially since be bas not asked tbe court for any •affirmative rebef that might be protected or secured by the preliminary injunction, which, besides, could not be made permanent for want of a principal action to be thereby sustained.

If Lloverás were to prevail in tbe action against him, it must be held in tbe judgment that Compañía Teatral de San-turce was not bis tenant by assignment from Rodriguez, since sucb is tbe essential fact of tbe complaint controverted in tbe answer; hence tbe plaintiff could not be compelled to perform any obligations as lessee. There is also another ground, namely, that tbe lease having been rescinded by tbe dispossess judgment no obligations arising therefrom could be demanded.

Appellee seeks to have appellant compelled to tbe specific performance of tbe lease contract, thus trying to secure by a preliminary injunction what be would be unable to obtain by an ordinary action, and it is an accepted rule that an injunction as a remedy to compel specific performance will be denied, especially when a mandatory injunction is asked, as tbe same is very rarely granted before final bearing. Beach on Injunctions, cited in San Juan Racing &amp; Sporting Club et al. v. Foote, 31 P.R.R. 154.

On tbe other band, independently of whether tbe covenant in tbe lease binding tbe lessee to keep tbe building in a good state of repairs bound sucb lessee to rebuild tbe roof of a big bouse — for that is what is meant by tbe order to replace tbe roof and tbe inside partitions and to repair or replace by others tbe floors, doors and windows — tbe language of tbe order is so indefinite and uncertain that compliance therewith would be impossible, because it does, not specify tbe kind of roof to be placed in tbe building, or whether tbe repairing applies to all tbe floors, doors and windows, or what sort of repairs shall be made, so that the execution of the order of injunction could be enforced. The mere fact that the damages are alleged to be irreparable is not of itself sufficient to justify the granting of the writ.

The order appealed from must be reversed and another made denying the petition for injunction filed by defendant Lloverás Soler, without special imposition of costs.

Mr. Justice Hutchison took no part in the decision of this case.  