Slice v. Carozza Properties, Inc.

³⁶⁰ Brune, C. J., delivered the opinion of the Court. This appeal is from a decree of the Circuit Court for Prince George’s County dismissing a bill for an injunction to enforce the provisions in a lease granting the complainant the exclusive right to sell alcoholic beverages in the Hill-crest Heights Shopping Center for off-the-premises consumption. 1 Henry W. Slice, as lessee (complainant-appellant), entered into a lease agreement with Carozza Properties, Inc., (defendant-appellee, usually referred to herein as “Carozza”), the lessor, in which he agreed to rent certain premises for a period of ten years. The lease was dated November 15, 1951, and was recorded November 24, 1952. The sections of the lease that are pertinent here are as follows: “1.

That for and in consideration of the covenants, promises and agreements herein contained and the rents hereinafter reserved, the Lessor does hereby lease and demise unto the Lessees, and the Lessees do hereby take and hire from the Lessor, premises known as Store #8, Hillcrest Heights Shopping Center, located at the intersection of Iverson Street and 23rd Parkway, Prince George’s County, Maryland, all as .more particularly shown on the plan attached hereto and made a part hereof, together with the right of customer use of a parking lot in common with other tenants of Hillcrest Heights Shopping Center, as more particularly set forth on the plans and specifications prepared by E. J. Conner, Architect for the Lessor. “7. * * * It is the expressed intention of the Lessor to grant the exclusive merchandising of Beer, Wine and Liquor for off-the-premises ‘consumption’ in ³⁶¹ the Hillcrest Heights Shopping Center to the Lessee, during the term of this lease.” Store #8 is located in the eastern portion of a tract of land known as Block M, Section 4, Hillcrest Heights (referred to below as “Block M”), consisting of about 9.34 acres, which is bounded on the west by 23rd Parkway, and on the south by Iverson Street, and on the east by an extension of 23rd Place. In May, 1951, Carozza, the owner of Block M, adopted what was called a plan of subdivision showing the outlines of the entire Block and dedicating 23rd Parkway to public use. This plat does not show the extension of 23rd Place, above referred to. During the year 1951 eleven or twelve stores were constructed (two originally projected being combined into one) and were subsequently leased to various tenants.

Appellant became the first tenant in possession by occupying Store #8 in December, 1951. Thereafter, during 1954 and 1955 a number of additional stores were erected in Block M, adjacent to the twelve stores (as we shall refer to them) built in 1951. The two groups of structures are separated by 54 feet. One of the additional stores built in 1954-1955 was leased by Carozza to Gina’s Italian Restaurant, Inc. (referred to hereafter as “Gina’s”), another of the appellees in this case, 2 for use as a restaurant, with a clause in the lease restricting the tenant in its sales of beer and light wines to “on sale” only, i. e., Gina’s was authorized to sell beer and wines only for consumption on the premises.

This lease was dated March 18, 1955. Appellant alleged in his amended bill of complaint that Carozza was instrumental in obtaining an alcoholic beverage license for Gina’s, that ever since the restaurant has been in operation it has sold alcoholic beverages not only for consumption on the premises but also for consumption off the premises, and that Carozza has refused to prevent this practice by ³⁶² Gina’s. These allegations as to package sales by Gina’s for off-premises consumption were admitted by Gina’s and all the individual defendants, but were denied by Carozza as part of a blanket denial of several allegations relating to violations of the lease to the appellant. The evidence includes a photograph of Gina’s showing in the window a sign stating that “We serve beer and light wine on and off sale daily and Sunday.” This photograph was taken in October, 1955, about two months before Carozza filed its answer to the bill of complaint.

The principal question is whether the exclusive license to sell beer, wine and liquor for off-the-premises consumption granted to the appellant, Slice, is limited to the area of the original twelve stores of Hillcrest Heights Shopping Center or extends to the more recently developed area sometimes called “Addition to Hillcrest Heights Shopping Center” and sometimes (as in Gina’s lease) called “Second Section Hill-crest Heights Shopping Center.” The appellant maintains that the restriction extends to all parts of, or additions to, Hillcrest Heights Shopping Center constructed on Block M, whether included in the original twelve stores or not. The appellees contend that the old and the new are two separate and distinct shopping centers, that the new center was not contemplated in 1951 and is not covered by the restrictive covenant in the appellant’s lease. The solution of the problem is made no easier by the fact that, despite the recital in Paragraph 1 of the appellant’s lease, no copy of any plat or plan whatever was attached to the appellant’s copy of the lease. No copy of the lease with a plan attached was produced by either side, and it does not appear that a plat or plan was attached to any of the three executed counterparts of the lease.

A considerable part of the testimony at the trial concerned the question of what plan or plat was referred to in paragraph 1 of the appellant’s lease or was intended to have been annexed thereto. The appellant testified that at the time he signed the lease, he saw plans indicating that Store #8 was to be a part not only of the twelve stores existing at that time but also of substantial future additions to the shopping center which ³⁶³ were indicated on the plans. He denied having seen the plat called “Defendant’s Exhibit C” (referred to below as “Exhibit C”) prior to signing the lease. A Mr. Holmes, who was employed by the rental agency representing Carozza in 1951 (and also in 1955) was called as a witness on behalf of Carozza.

He was asked “whether or not there was any plan in being or in existence contemplating additional shopping area at the time the lease was entered into with Slice on November 15, 1951.” He answered : “There certainly were no plans in existence other than the plans for the 12 units, 12 store units.” At a later stage he was asked: “Is it your testimony * * * that at the time the Slice lease was negotiated, there was no commercial construction in contemplation except those 12 stores * * *?” He replied: “That is correct. There was no contemplated construction except the 12 stores.” Although Mr. Holmes’ emphasis upon plans in existence and upon the word “construction” seems to suggest that he was speaking of plans for more or less immediate construction rather than of plans for future development, and his responses to questions relating to the development of the so-called second section seems to carry a suggestion that he regarded a plan as referring to drawings prepared for construction which was about to begin, both the Chancellor and the appellant evidently took his testimony as indicating that in 1951 there were no plans or even proposals for a more extensive shopping center in the future than the original twelve stores. We shall assume the correctness of that interpretation. The appellant sought, on rebuttal, to show through a Mr. Crozier, who had been an officer of an improvement or citizens’ association in 1950 and 1951, that prior to the execution of the appellant’s lease, Carozza or its agents had exhibited to the association plans for a projected shopping center on Block M at variance with Mr. Holmes’ evidence as to what was projected.

The Chancellor excluded the proffered evidence. Mr. Holmes also testified that large scale plans were drawn by E. J. Conner, Carozza’s architect, “to enable us to analyze the placement of fixtures, things of that sort in a given store ³⁶⁴ area,” that they worked from such plans, that Exhibit C was a direct photostat of a small sized tracing also made by the architect, that this tracing was drawn from a large scale plan and was prepared for the purpose of supporting the leases, that Exhibit C “is the plot plan referred to in the lease and is the plot plan in support of Mr. Carozza’s copy of the lease.” The positiveness of this testimony was much weakened by Mr. Holmes’ subsequent testimony, and we find his testimony as to what was actually before Mr. Slice when the lease was executed and as to when Exhibit C was shown to Mr. Slice both confused and confusing. The lease was executed on November 15, 1951; Exhibit C is dated November 16, 1951. At one point Mr. Holmes admitted that it would have had to have been shown to Mr. Slice on or after November 16th.

At another point he asserted that the plot plan, by which he apparently meant the large scale plan from which Exhibit C was derived, was in existence before November 16th. He also asserted that it was immaterial whether the tracing from which Exhibit C was made was actually prepared the day before or the day after the lease was signed, “because we were working from the plans themselves in [with ?] which Mr. Slice was very familiar.” He also testified that he believed that Mr. Slice executed the lease sitting at his (Mr. Holmes’) desk “with the plans of this whole center lying before us at the time.” Mr. Holmes admitted that he had drafted the lease. When pressed as to whether he had or had not attached a plot plan similar to Exhibit C to the lease before presenting it to Mr. Slice, he said that he didn’t know — he would assume that he did, but he may not have. He did not know and he could not recollect.

Mr. Slice, it will be recalled, denied that he had seen Exhibit C before signing the lease. The Chancellor evidently accepted Mr. Holmes’ testimony as to what plans were shown Mr. Slice, in preference to Mr. Slice’s testimony on that matter. In his opinion he said that “the Court concludes from an overall consideration of the evidence, that the parties did negotiate upon the basis of a plat disclosing the location of Store #8 and the subdivision in which it was included, and that this lease * * * was the ³⁶⁵ outgrowth of that negotiation based upon the plat discussed by the lessee, Slice, and the real estate agent, Mr. Holmes * * *. ” The Chancellor then went on to say: “Now, we come to the question of what the parties intended, or what was the subject matter of the contract. The rule is that in considering the construction of a contract, the entire instrument must be considered and the language used given effect, if possible, and likewise the facts and circumstances surrounding the execution of the instrument. “The Court concludes that the only property that was then in existence was the commercial development known as Hillcrest Heights Shopping Center, of which Store No. 8 was one; and that there was no contemplation at that time of any further or new development that would be adjacent to it. “The Court’s view is that this contract is specifically clear in describing what was the subject matter then in existence.

And if Mr. Slice had desired to look ahead about some possible future development that might impinge upon his business, he could have done so. “This is not a case of an ambiguity, as the Court sees it, which could be construed more strongly against the lessor, but rather a case where the Court is called upon to enlarge and to put into a contract some years later what was not put in it when it was executed, was not contemplated at that time, and enforce the contract as enlarged as against one of the contracting parties under quite different conditions and * * * circumstances. “The Court concludes, therefore, that the Second Section of Hillcrest Heights Shopping Center was ³⁶⁶ a different and later piece of property which was not affected by the original lease to Slice, * * Accepting the Chancellor’s finding that the parties “did negotiate on the basis of a plat disclosing the location of Store No. 8 and the subdivision in which it was included,” 3 let us consider the effect of this finding. The subdivision is unquestionably Block M. The recorded plat of Block M shows the northeast corner of the intersection of Iverson Street and 23rd Parkway. It shows 23rd Place as stopping on the south side of Iverson Street. Paragraph 1 of the lease refers to Hillcrest Heights Shopping Center as located at the intersection of Iverson Street and 23rd Parkway.

It is inconceivable that both parties to the appellant’s lease did not know the location of the whole subdivision. Most assuredly, Carozza.did and it was a matter of public record, made such by Carozza. Now, what is the function of a plat such as Exhibit C? We think that its purpose was to show the location and dimensions of the stores under construction and of the adjacent parking spaces to be made serviceable for use in connection therewith.

It shows this area to be at the northwest corner of the intersection of Iverson Street and