Record No. 1952 In the Supreme Court of Appeals of Virginia at Richmond ANNA KRIKORIAN

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Record No. 1952
In the
Supreme Court of Appeals of Virginia
at Richmond
ANNA KRIKORIAN, EXECUTRIX, ETC.
v.
THOMAS DAILEY
!!'ROM TilE LAW AND EQliiTY COURT OF THE CITY 01r RICHMOND
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( 7I Lh
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70 crk.
B.
I
I
IN THE
Supreme Court of Appeals of Virginia
AT RICHMOND.
Record No. 1952
ANNA KRIKORIAN, EXECUTRIX OF THE WILL OF
K. DER KRIKORIAN, DECEASED,
Plaintiff in Error,
vers·us
THOMAS DAILEY, Defendant in Error.
PETITION FOR WRIT OF ERROR AND SUPERSEDEAS
To the Honorable Chief Justice and Justices of the Supreme
Court of Appeals of Virginia:
Your petitioner, Anna Krikorian, Executrix of the last
will of K. Der I{rikorian, deceased, respectfully represents
that she is aggrieved by a judgment of the Law and Equity
Court of the City of Richmond for the sum of $4,750.00 with
interest thereon from the 23rd day of December, 1936, and
costs, which was entered against her as the personal repre
sentative of K. Der Krikorian, deceased, June 9, 1937, in the
snit depending in the said court wherei~ the said Thomas
Dailey was the plaintiff and she as the personal representa
tive of the estate of K. Der I(rikorian, deceased, was the de
fendant. A transcript of the record of the said case is here
with exhibited.
\
2 Supreme Court of Appeals of Virginia.
.STATEMENT OF FACTS.
.Anna Krikorian, the pei·sonal representative of I{. Der
Krikorian, deceased, will hereafter be called the defendant,
and Thomas Dailey will hereafter be called the plaintiff, ac~
cording to their respective positions in the lower court. ·
K. Der Krikorian, the husband of the defendant, owned the
real properties No. 509 North Ryland Street and No. 1039
West Grace Street, Richmond, Virginia. He had owned the
real estate on 'Ryland Street some years and acquired that on
Grace Street in April, 1933. The improvements on the Grace
Street lot consisted of an old brick building which was used
for residential purposes. All of the property was mort
gaged, and Krikorian desired to ma~e such use of the Grace
Street property as would be to his best interest. He wanted
to convert the house into a store and rent it for a drug store
or a chain grocery store. He conferred with the Laburnum
Realty Corporation, and that company approved his plan and
advertised the property in Richmond newspapers a number
of times under the heading, ''Drug Store Location''.
In the summer of 1934, Robert F. Ritchie, Jr., of the La
burnum Realty Corporation, saw .J. W. Chamblee who, with
his broth'er, D. P. Chamblee, operated drug stores, and en- '
deavored to lease them the said property for a drug store,
but, at that time, they were not interested in the location.
About a year later, or early in the summer of 1935, Mr.
Ritchie talked with them again about the matter and~ after
negotiations had been carried on for some time, Krikorian
. agreed to make alterations according to certain plans and
specifications at a cost of approximately $8,000.00, and the
Chamblees agreed to lease the property. 1\fr. J. W. Cham
blee, a witness for the plaintiff, testified:
*
Q. Can you tell about how long you all were negotiating
before you actually executed the lease Y
A. Well now, I couldn't tell you that. He first mentioned
it in the summer of 1934. It must have been before June 1st
as that is 'vhen I had to serve notice that I would give up my
old location. -
· Q. So you know by that it was before June 1st that you
were negotiating with l{rikorian 's agent Y •
A. Yes, sir.
Q. For this place~
A. Yes, sir.
Q. Now, the lease stipulates that he was to spend about
Anna Krikorian, Executrix, etc., v. Thos. Dailey. 3
$8,000.00 up there in repairs. Were those alterations and
repairs made Y
A. Yes. (R., p. 170.)
The lease entered irito between the said K. Der Krikorian
and the said Chamblees, so far as matetial, is in the follow
ing words and figures, to-wit:
"THIS DEED OF LEASE, made this 19th day of July,
in the year 1935, between K. der Krikorian, landlord, here
inafter styled lessor, party of the first part, and J. W.
Chamblee and D. P. Chamblee, tenant, hereinafter
styled lessee, party of the second part, WITNESSETH:
That the said party of the first part doth demise unto
the said party of the second part, the following prop
erty, located in the City of Richmond, Va., to-wit: .Store
room and stock room in building known as No. 1039 West
Grace Street, to be altered and improved in accordance with
plans and specifications approved by the parties hereto. The
premises hereby leased are to be used as and for drug store
purposes only from the 1st day of November, 1935, for the
term of six years thence next ensuing, and expiring on the
last day of October, 1.941, yielding therefor, during the said
term, the rent of Eighty Five Hundred Twenty Dollars, pay
able as follows, to-wit; $110.00 monthly for first two years,
$120.00 monthly for second two years, and $125.00 monthly
for the last two years, on the first day of each and every month
d:nring the term of this lease, IN ADVANCE, at the office
of Laburnum Realty Corporation, .Agent, without demand
being made therefor. * «· * ''
The property, No. 509 North Ryland Street, was occupied
as a confectionery at and during the time that Krikorian and
his agent were negotiating with the Chamblees for the lease
of No. 1039 West Grace Street for a drug store. The state
license to conduct the said business had been granted to Mary
Dailey, trading as Dailey's Confectionery, but the lease was
in the name of Thomas Dailey, the plaintiff. The lease to
No. 509 North Ryland Street expired in September, 1935, and
the plaintiff desired a new lease to take effect at the expira
tion of the old one. He discussed the matter with Krikorian
and a J.\IIr. Talley at the office of the Laburnum Realty Cor
poration. Talley was an officer of the said company, but was
dead at the time of the trial. These discussions with the
plaintiff took place during the time that Krikorian and his
agent were negotiating with the Chamblees for the lease of.
4 · Supreme. Court of Appeals of Virginia
No. 1039 West Grace Street for a drug store, for which pur:
pose Krikorian desired to rent that property.
E. W. Minson, who was connected with. the Laburnum Realty
Corporation, was present at one of the conferences that oc~
curred some time in ltiay, 1935, between Krikorian, Talley and
the plaintiff, when the matter of a new lease of No. 509 North
Ryland Street was discussed. ~fr. Minson said that the plain. .
tiff wanted Krikorian to insert a clause in the proposed lease
which would prohibit him from leasing- his Grace Street prop
erty to any type of business that would install a soda foun ..
tain,. and that acting under instructions from Talley he ac
tually prepared such a lease; that when the lease was shown
to Krikorian he refused to sign it and tore it up; that Kri. .
korian said at the time that he had already entered negotia
tions to build a store and lease it as a drug store, and for
that reason he would not sign a lease restricting it; (R~, pp.
306, 307, 308). The said E. W. Minson testified:
·. Q. Mr. Minson, are you connected with the Laburnum
Realty Corporation Y
A. Yes, sir (R., p. 305).
• • • • •
Q. Now, Mr. Minson, were you present on the occasion
when Mr. Krikorian and Mr. Dailey came into the company's
office on Main Street to have a talk about the lease of some
property on Ryland StreetY·
A. Yes, sir.
Q. Who was present at that conversation or meeting?
A. l\{r. Talley of our office, Mr. Krikorian, Mr. Dailey, and
myself.
Q. Well, now, what was the object of meeting down there?
What were they talking about?
A. To try to come to some ter:ms and agreement whereby
they could draw up a renewal lease for Mr. Dailey.
Q. What did Mr. Dailey want Mr. Krikorian to do?
A. To insert a clause in his lease prohibiting Mr. Kri
korian from leasing the corner store at 1039 West Grace to
any type of business that would install a soda fountain. .
· Q. Now, was anything said about a drug store or chain
storeY
.A. Yes, sir (R., p. 306).
• • • • • •
Q. In other words, at this meeting Mr. Dailey was trying
Anna Krikorian, Executrix, etc., v. Thos. Dailey. s
to get Mr. l{rikorian to restrict 1039 "\Vest Grace Street, was
he?
.
A. Yes, sir.
• • .
Q. Now, go on and tell the jury exactly what position Kri
korian took down there at that meeting and what Dailey's po
sition was and what the result of it was Y
A. Well, to begin with, I suppose that Mr. Talley had been
tryrng for at least two months to bring Mr. Dailey and Mr.
Krikorian together on the terms of the lease, and I think it
was more or less thoroughly discussed (R., p. 307) .
• •
Q. Go ahead and tell the ones that you were present and
who drew up the lease and so on.
A. Mr. Talley instructed me to draw up a lease and put in
it just what Mr. Dailey wanted. That I did, put the clause
in it as I stated before that limited the leasing of 1039 to any
type of business that would install a soda fountain.
The Court: That would what¥
The Witness: That would install a fountain. Mr. Kri~
korian would not sign the lease. He tore it up. Said that
at the time he had already entered negotiations to build a
store on the corner and to lease it as a drug store, and for
that reason he would not sign that lease restricting it.
*
Q. When was this, nowY
A. This was. about 1\Iay, 1935 (R., p. 308).
The plaintiff admitted that he discussed the question of a
new lease with l{rikorian and Mr. Talley at the office of the
Laburnum Realty Corporation (R., p. 80). Krikorian never
signed the proposed lease, and he refused to sign any lease
that would prohibit him from renting his said Grace Stree.t
property for a drug store.
Rose & Lafoon, Incorporated, real estate agents, had done
some financing for l{rikorian in October, 1934, and in April
or May, 1935, that concern took over No. 509 North Ryland
Street as agent for Krikorian. Mr. Krikorian frequently dis
cussed his affairs with 0. M. Lafoon, a member of 'the said
corporation, and often sought his advice. Mr. Lafoon had
6 Supreme .Court of Appeals of Virginia.
been advised of what had taken place at the office of the
Laburnum Realty Corporation with reference to a proposed
lease of the said property, No. 509 North Ryland Street, to
the plaintiff. He knew that Krikorian did not sign the pro
posed .lease, and he also knew that Krikorian expected to
lease No. 1039 West Grace Street for a drug store (R., pp.
332, 333). '
With knowledge of these matters, the said 0. M. Lafoon,
on or about July 2, 1935, prepared a lease of the said prop
erty, No. 509 North Ryland Street, which was executed July
2, 1935. The said lease, so far as material, is in the following
words and figures, to-wit:
"THIS DEED OF LEASE, made this 2nd day of July in
the year 1935 between 1{. Der l{rikorian, hereinafter styled
lessor, party of the first part, and. Tom Dailey, hereinafter
styled lessee, party of the second part, WITNESSETH: That
the said party of the first part doth demise unto the said
party of the second part the following property, to-wit:
Store-509 North Ryland St., Richmond, Va.
"The premises hereby leased are to be used as and for
confectionery from the 1 day of October, 1935, for the term
of five years from thence next ensuing, and expiring on the
30 day of September, 1940, yielding therefor, during the said
term, the rent of Three Thousand and No/100 Dollars ($3,
000.00), payable as follows, to-wit: Regular--$50.00 per
month at. the office of Rose & Lafoon, Inc., Agents, without·
demand being made therefor, the first instalment to become
due on the 1 day of November, 1935. * • * ·
''SPECIAL COVENANTS:
''Lessor agrees to fix new floor as agreed-paper one room
upstairs plaster where necessary in store-paint wall above
fixtures and ceiling-patch floor to toilet.
''Lessor will not lease property known as 1039 West Grace
.for a confectionery during this lease. R. & L. Agts. Lessor.
• • •
''The lessee further covenants that the lessor may re-enter
for the breach of any covenant herein contained, or for re
pudiation of lease, or failure to move into premises at the
beginning of the term, and especially for, or on account of
non-payment of rent, actual demand therefor by the land
lord being expressly waived; and may re-rent the said prem
ises for the account of the lessee at any price or rate that
the lessor may consider proper under the circumstances, and
Anna Krikorian, Executrix, etc., v. Thos. Dailey. 7
collect any deficit from the lessee tip to the end of the said
term. • * *
''Witness the following signatures and seals:
K. DER KRIKORIAN (Se_al)
THOl\IAS DAILEY (Seal)"
The said lease was acknowledged by the parties and re
corded in the Clerk's .Office of the Chancery Court of the
City of Richmond on the 17th day of July, 1935. (Exhibit No.
1, R., p. .)
The only language in the lease which related to a restric
tion of any kind was in these words : ''Lessor will not lease
property known as 1039 West Grace Street for a confection
ery during this lease.'' There is not a word in it about pro
tecting the lessee of 509 North Ryland Street against com
petition. Krikorian agreed not to rent the Grace Street
property for a confectionery, which is all that is said on the
subject. At the time the said lease was executed, Krikorian
was still neg·otiating with the Chamblees for a lease of No.
1039 West Grace Street for a drug store, and he knew he
would have to expend about $8,000.00 to put it in condition
for that purpose. The actual date on which Krikorian and
the Chamblees came to terms does not appear, but it has been
shown that the lease was signed by the parties July 19, 1935.
By reason of the clause above quoted from the plaintiff's
lease, he contended that l{rikorian had no right to rent 1039
vVest Grace Street to the Chamblees for a drug store, and
claimed that when he did so he violated the said agreement.
Krikorian, on the other hand, contended that he did have the
-right to lease the said property for a drug store, and that in
making the lease to the Chamblees he did not commit a breach
of the covenant. The litigation grew out of this contro
versy.
On August 15, 1935, James C. Page, attorney for the plain
tiff, wrote Krikorian threatening him with suit if the prem
ises, 1039 West Grace Street, were used by the lessees for
a drug store. Krikorian, on August 26, 1935, replied to the
letter and stated that the lower floor of 1039 West Grace
Street had been leased for a drug store and not for a confec
tionery. On August 28, 1935, }Ir. Page again wrote Krikorian
and, in his letter, gave his opinion in the matter and stated
what he would advise his client to do.
The plaintiff did not pay the rent as he agreed to do. On
December 2, 1935, he paid the rent due up to November 20,
1935, but did not pay any that accrued and became due after
that time, and Krikorian, through his agent, Rose & Lafoon,
8 Supreme Court of Appeals of Virginia.
Incorporated, served notice on him, according to law, to pay
the rent or quit, and the plaintiff vacated and moved on Feb
ruary 24, 1936, owing rent which he never paid or offered
to pay. .
In December, 1935, the plaintiff brought suit in the Cir
cuit Court of the City of Richmond. This suit was dismissed.
He brought his second suit in the same court in January,
1936~ The proceeding was by motion. The plaintiff, in sub
stance, alleged that Krikorian had rented him the premises,
509 North·Ryland Street for a confectionery, which business
he conducted, and in his lease had agreed not to lease No.
1039 West Grace Street for a confectionery. He further al
leged that Krikorian did lease the said premises, No. 1039
Vv.
West Grace Street, to ''J. and V. B. Chamblee ostensibly
as a drug store'' and that in making such a lease he violated
his agreement with him. He further alleged that he lost
$5.00 per day in profits and other profits which he would have
received from time to time, and claimed damages in the sum
of $15,000.00.
The suit was removed to the I..Jaw and Equity Court of the
City of Richmond. ~{r. Krikorian died February 22, 1936,
and an amended notice of motion for judgment was filed
against Anna Krikorian, executrix of the will of K. Der
Krikorian, deceased, which was founded on the same alleged
cause of action,. for $15,000.00 damages. The damages claimed
were profits and gains which the plaintiff alleged he would
have made out of and from the confectionery business con
ducted at .No. 509 North Ryland Street. The plaintiff, how
ever, did not have a state license to conduct the said business,
which the law required of every merchant who engaged in
such business. But the license to carry on and conduct the
said business, at the said place, was granted to Mary Dailey,
trading as· "Dailey's ·Confectionery", a· fictitious name, _and
Section 4722-(1) of the Code was never complied 'vith (R.,
p. 130). Exhibit No. R., p. .)
The plaintiff testified that 1.\-Iary Dailey was a partner in
the said business; that she owned as much of the ·said busi
ness as he did; that she 'vas entitled to part of the profits;
that she had as 'much interest in the business as he ; that she
bad half (R., pp. 92-93, 100, 112, 113).
The defendant, at the trial, contended as follows: (1) That
it was the duty of the court to construe the leases, and that
upon a proper construction thereof the court would have to .
hold that there had been no breach of the covenant on the part
of the defendant's testator; (2) that the court admitted er
roneous testimony; (3) that the plaintiff had no state license
which authorized him to prosecute the business, and that if
Anna Krikorian, Executrix, etc., v. Thos. Dailey. 9
he was doing business it was in violation of law and he could
not recover; (4) that if 1\fary Dailey, to whom the license
to do the business had been granted, was not the owner of
the business she, at least, owned a part of it and was a part
ner with the plaintiff accordi:ng to his uncontradicted evi
dence, and that the plaintiff could not maintain the suit; ( 5)
that K. Der Krikorian was dead, and that the evidence of
the plaintiff had to be corroborated; (6) that the business
at No. 509 North Ryland Street was conducted in a fictitious
name, namely, "Dailey's Confectionery", without the owner
or owners thereof having complied with Section 4722-(1) of
the Code, and that if the plaintiff was the owner he was con
ducting .a business which was prohibited by the statute and
guilty of an offense, and could not recover; (7) that the plain
tiff broke his contract of lease, refused to pay rent, and va
cated the premises on February 24, 1936, and could not re
cover; (8) that the damages claimed· .were future losses of
profits which were purely speculative and too remote to be
recovered. The court overruled all of the said contentions,
refused.certain instructions requested by the defendant, modi
fied others and gave instructions for the plaintiff over the
objection of the defendant. · ·
The jury returned a verdict for the plaintiff for $4,750.00,
which the defendant, for reasons stated, moved th~ court to
set aside. The defendant further moved that the verdict be
set aside and final judgment entered for the defendant on the
ground that the verdict was contrary to the evidence and with
out evidence to support it. But the court overruled the mo
tions and entered judgment on the 'Said verdict, and to the
ruling and action of the court the defendant excepted.
The errors complained of will be discussed separately un-
de~ the several assignments of error. ·
ASSIGNMENTS OF ERROR.
First : The court erred in refusing instruction '' F'' re
quested by the defendant.
This a~signment of error deals with the construction of the
lease, the br.each of which was alleged by the plaintiff. The
defendant denied the breach, and contended that since the con
tract was in writhig, the question of whether there was a
breach was O'he of law for the court upon a proper construc
tion of the leases which were written in ordinary language,
plainly understood and wholly free from ambiguity.
It is, of course, well understood that in matters of contract
it is imp"ortant to ascertain the intention of the parties, and