
    The Avery-Toledo Co. v. Frank.
    (Decided February 4, 1935.)
    
      
      Messrs. Geer, Lane & Downing, for plaintiff.
    
      Mr. Marcus L. Friedman and Messrs. Deeds & Cole, for defendant.
   Richards, J.

This action was commenced by The Avery-Toledo Company in the Court of Common Pleas on May 23, 1934, for the purpose of securing an injunction which would prevent the defendant, Steve Prank, from keeping and selling intoxicating liquors on plaintiff’s premises. In the Common Pleas Court a judgment was rendered for the plaintiff on the pleadings, making the injunction permanent, from which decision an appeal was taken to this court. After the case was appealed to this court, the defendant, on leave, filed an amended answer, and plaintiff filed a reply thereto, whereupon evidence was taken in this court by depositions covering the issues involved.

The plaintiff is the owner of certain real estate on Monroe street in the city of Toledo, which was occupied by the defendant, as tenant, for fifteen years or more immediately prior to the year 1933. On October 23 of that year the parties entered into a new lease for the premises for the period of three years from November 1, 1933, the rental provided being $50 per month for the first four months and $60 per month for the remaining period. This lease contains the provision that the premises “are to be used for groceries and restaurant business and for no other purpose, without the written consent of said lessor.”

The lease also contains the following provision: “That said lessee will not sell, permit to be sold, keep or permit to be kept on said premises, spirituous, vinous, malt or any intoxicating liquor * *

The defendant has continued in possession under the lease containing’ the foregoing provisions, and has paid the rent according to the terms of the lease for a considerable period of time. It will be observed that the lease is specific as to the purposes for which the premises were leased, and just as specific in the language prohibiting the sale of intoxicating liquors on the premises.

The defendant in his amended answer does not deny that he is selling intoxicating liquors on the premises, but sets up numerous facts and circumstances which he contends estop the plaintiff from insisting on a compliance with the terms of the lease. These averments are to the effect that the plaintiff had full knowledge that the defendant was selling beer on the premises at the time the lease was made, and had not made any demand that he should stop selling that beverage, but consented thereto, and that the lease was executed with the understanding and agreement that the defendant could operate a beer garden on the premises. He further avers that about January 1, 1934, he was licensed to sell “high-power” beer, with the full knowledge and consent of the plaintiff, and was also licensed about February 1,1934, to sell whiskey, wine and other intoxicating beverages at retail on the premises, all to the knowledge of the plaintiff. The pleading contains other cognate allegations, it being contended from all of the allegations in the pleading that the plaintiff is estopped from enforcing the provisions of the lease which prohibit the sale of intoxicants on the premises.

The controversy in this case is wholly one of fact, as we do not doubt the proposition that under a proper showing an estoppel could arise. We, however, approach the consideration of this question in the light of the decision of the Supreme Court in the case of Kroll v. Close, Admr., 82 Ohio St., 190, 92 N. E., 29, 28 L. R. A. (N. S.), 571, where the following proposition is laid down in the syllabus:

“The burden is upon the party who relies upon estoppel, to prove clearly and unequivocally every fact essential to the estoppel.”

And of course it is also true that in determining this question of fact it must be decided by the court solely upon the evidence which was introduced on the trial of the case.

The lease between the parties having been executed on October 23, 1933, was in fact made more than two months before it was lawful to sell at retail so-called “high-power” beer, whiskey and wine, so that it could hardly have been within the contemplation of the parties at that time that such sales could be made on the premises. While the defendant emphatically asserts that the plaintiff’s representative had full knowledge of and consented to such sales, that representative, with equal emphasis, denies that he ever did so consent and testifies that he informed the defendant that such sales must not be made on the premises. The testimony of the plaintiff’s representative is corroborated in large part by other testimony, and it must be remembered that in order to sustain an estoppel in this case it is necessary to impeach a written instrument.

The premises owned by the plaintiff consist of a large brick building containing several stores on the ground floor and several apartments, above, the upper apartments being occupied for residential purposes, and the evidence shows that the conduct of the liquor business by the defendant and the acts of some of his patrons created a nuisance in the passageway along the side of the building and in the rear thereof.

The above facts sufficiently rebut the contention made by the defendant that the loss which the plaintiff will suffer can be measured in damages. What reduction in rentals of the upper rooms would have to be made, and, what, if any, tenants would vacate by reason of the conditions indicated, could hardly be established or computed.

Any delay which may have occurred in bringing the action is accounted for by testimony showing that plaintiff was during that time seeking to get evidence of the fact that sales of intoxicating beverages were being made on the premises.

A judgment and decree making the injunction perpetual will therefore be entered for the plaintiff.

Judgment and decree for plaintiff.

Overmyer and Lloyd, JJ., concur.  