
    No. 5
    EUCLID 105th PROP. CO. v. WILHELMY
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 6031.
    Decided Oct. 19, 1925
    707. LEASES — Where by the terms of the lease, the right is given to lessee to sell bulbs, natural and artificial flowers, no breach thereof is committed in refusing the lessee the right to sell Christmas trees.
    Attorneys — M. P. Goodman for Properties Co.; F. T. Cullitan for Wilhelmy; both of Cleveland.
   VICKERY, J.

The Euclid 105th Properties Co. as lessor of the market, sued Edward Wilhelmy ir. the Cleveland Municipal Court for rent upon a lease of a stall in the markethouse to Wilhelmy. It seems that Wilhelmy vacated the premises before the expiration of the lease and the Company being unsuccessful in renting the stall during duration of the lease brought this action to recover rentals for the unexpired term thereof.

Wilhelmy’s defense was that the Company violated the provision in the lease giving him the exclusive right to sell natural and artificial flowers. - In the trial below, before a-jury it was shown that one Temblett, a flower dealer, was permitted by the Company to store flowers in its premises which was not located in the market house nor in the Arcade leading to the market house. Wilhelmy also maintained that the Company previously breached the terms of the lease when during Christmas, it refused him the right to sell Christmas trees.

A judgment in favor of Wilhelmy was rendered in the Municipal Court and the Properties Co. prosecuted error on the ground that the evidence did not sustain Wilhelmy’s contention. The Court of Appeals held:

1. Under the terms of the lease, Wilhelmy’s exclusive right was limited to, the market house property and the arcade leading thereto.
2. The storeroom occupied by Temblett is not a part of the market house or the arcade.
3. The evidence positively shows that no sales were made in the storeroom occupied by Temblett who used the room for the purpose of dressing up his flowers.
4. Christmas trees are not mentioned in the lease as one of the articles Wilhelmy might sell and they do not come under the head of bulbs or natural and artificial flowers. Therefore, the conduct of the Properties Co., in refusing to Wilhelmy the right to sell Christmas trees would not warrant a forfeiture of the lease.

Judgment reversed and case remanded for new trial.  