The landlords of a property had covenanted not to permit or suffer to be permitted on thir neighbouring property the business of ladies’ outfitting. That property was later let to the defendants, who were hosiers, selling four classes of clothes that a ladies’ outfitter would sell. The tenant holding under the first lease brought proceedings against the tenants of the adjoining property for an injunction to restrain them carrying on the business of ladies’ outfitting.
Held: The defendants were not carrying on that business.
Cotton LJ said: ‘If it could be made out that the sale of these articles made up the business of a ladies’ outfitter it would be quite another question, but it does not follow, because it is necessary for a ladies’ outfitter to sell certain articles, that everyone who sells these articles is carrying on the business of a ladies’ outfitter. Suppose, for instance, that the sale of corsets is an important part of the business of a ladies’ outfitter, it could not be contended that a person who sold corsets, and nothing else, was to be considered a ladies’ outfitter. That trade is not carried on by anyone who does not sell substantially all articles of ladies’ underclothing. The Defendants sell many things which are not sold by ladies’ outfitters, and do not sell many things which are sold by ladies’ outfitters. They sell some things which are sold by ladies’ outfitters, but they sell them in the ordinary course of their business as drapers and hosiers. The covenant is not against selling any of the articles which are sold by ladies’ outfitters, such a covenant would raise quite a different case. ‘
Bowen LJ said: ‘The business of a ladies’ outfitter is one business – the business of a hosier is a distinct business. The two businesses overlap each other by having four classes of articles the sale of which is common to them both. But a covenant not to carryon the business of a ladies’ outfitter is not broken by carrying on the business of a hosier, and the hosier commits no breach by selling some articles which are usually sold by a ladies’ outfitter, ifhe does it in the ordinary course of the business of a hosier. Mr Dauney put the argument of the Respondent very happily in the form of a syllogism: ‘All ladies’ outfitters sell combinations, the Defendants sell combinations, therefore the Defendants are ladies’ outfitters.’ I do not think that a covenant not to carryon the business of a ladies’ outfitter is broken by carrying on a part of that business, which is also a part of another distinct business, even though it be a substantial part of the business of a ladies’ outfitter and only a subordinate part of the other business.’
Cotton LJ, Bowen LJ
[1899] 43 Ch 343
England and Wales
Cited by:
Cited – Mount Cook Land Ltd v Joint London Holdings Ltd and Another CA 7-Oct-2005
The head lease contained a covenant against use of the premises as ‘victuallers’. The tenant sublet the premises for use as a sandwich shop. The tenant argued that the word ‘victuallers’ was to be construed only to prevent the use as ‘licensed . .
Lists of cited by and citing cases may be incomplete.
Updated: 21 September 2021; Ref: scu.231051