Eastwood, Goldmann and Francis. The opinion of the court was delivered by Francis, J.c.c. (temporarily assigned).
In this action appellant, Adolph Brenta, is in possession of the premises in question. His possession arose from the assignment of a lease entered into between his assignor and the predecessors in title of respondents, Fritz Plassmeyer and Florence C. Plassmeyer. The Plassmeyers sought possession alleging a breach of the lease, and the jury found in their favor; Brenta now appeals.
The proof discloses that on May 1, 1944 the premises were leased in writing by the former owners, Sara S. Lowenstein and Carol L. Davis, to Terminal Stations, Inc. On October 24, 1945 Terminal, Inc. assigned to Brenta who thereafter paid the rent regularly to the lessors.
The lease was for a term of 20 years, to expire on April 30, 1964. It provided that the premises were to "be used and occupied only and for no other purpose than as a gasoline service station." Rent was fixed at $125 monthly for the first ten years of the term and at $150 monthly for the last ten years. Then the agreement granted a reduction to $75 per month from May 1, 1944 until April 30, 1946, with the qualification that if the war ended, or if the then existing restriction on the use of gasoline was terminated prior to the latter date, the reduction would cease. As additional rent the lessee agreed to pay one cent per gallon for each gallon of gasoline delivered into the storage tanks on the premises in excess of a certain gallonage.
The agreement also provided that in the event of default in the performance of any of the covenants, at any time
thereafter the lessors had the election to terminate the lease upon giving five days' notice of their intention to do so.
Neither the original lessee nor appellant ever used the premises as a gasoline service station. The contention advanced in the trial court was that the stipulation in the lease with respect to such use was merely a covenant not to put the property to any other use, but that no positive obligation was imposed to operate a service station. It was asserted that so long as the tenant paid the monthly rent and did not engage in any other occupation on the premises, no breach of the lease arose.
The trial court concluded that the language of the lease was clear and unambiguous and plainly created a duty to operate a gasoline service station. Our study of the instrument convinces us that this interpretation was correct. The language employed, particularly that dealing with the rental obligation, was prohibitive and mandatory with respect to use, and not merely restrictive, as in the cases on which appellant relies, namely, Burns & Schaffer Amusement Co. v. Conover , 111 N.J.L. 257 (E. & A. 1933); Hoffman v. Seidman , 101 N.J.L. 106 (E. & A. 1925); McCormick v. Stephany , 57 N.J. Eq. 257 (Ch. 1898). Consequently failure to engage in that use constituted a breach.
However, such conclusion does not dispose of the problem. It appears, without dispute, that throughout the period from the inception of the lease down to the payment of the last monthly rent on August 1, 1950, the lessors were aware of the violation; yet they accepted the fixed minimum rent for this period of over six years, and never exercised their election to terminate.
On occasions the attorney for the lessors spoke to Brenta about using the demised premises for a gasoline station, but there was never any insistence upon it. It appears also that during the years negotiations were carried on with various persons for the sale of the fee of the premises.
Among the prospective purchasers was the Trenton Oil Co., a gasoline distributing company, whose owners were Anthony
Conte and Anthony Gambino, the latter being a nephew of Brenta. In 1947 these two men, who seemed to have some business relationship with Brenta, were asked by the owners' attorney if they were "ever going to erect a station." At this time another lease was drawn up for a longer period of time and requiring the erection of a station. However, a new agreement was not consummated and the attorney said that he again asked them to use the property as a gasoline station.
In the spring of 1950 negotiations were renewed on behalf of the owners with the Trenton Oil Co. and a contract of sale was prepared. But again for some reason the transaction was not completed. In fact, as late as May 20, 1950 the attorneys for the parties were corresponding about particular provisions to be included in the agreement.
The evidence shows also that in 1948 and again in the fall of 1949 the respondent Fritz Plassmeyer made overtures toward the purchase of the property. He wished to operate a diner there and on at least one occasion suggested to Conte that they make the purchase together, in which event he would install a diner and Conte's interests could run a gas station. Again the sale did not materialize, apparently because the price was too high.
In July 1950 the real estate broker who had originally brought the matter to the attention of Plassmeyer having died, his brother, Paul Plumeri, again communicated with Plassmeyer. At this time a price of $40,000 was given, which included the purchase of both fee and leasehold. Then, in August, Plassmeyer told ...