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Fitz v Iles: CA 8 Nov 1892

The plaintiff, George Fitz, was the tenant under a lease in which he covenanted to carry on the business of a coffee house keeper. The lessor, Daniel Iles, covenanted not during the term to let any shop in the same road, over which he had any control, as a coffee house. Mr Fitz subsequently let other premises to Messrs Went and Buchanan in the same road under a lease which prohibited them from using their premises as a coffee house and required them to use the premises only for the trade or business of a tea and coffee dealer and for the sale of non-intoxicating refreshments. Went and Buchanan carried on business as dealers in tea, coffee, sugar and other groceries; but they proposed, for the convenience of their customers and for the purpose of attracting custom to their shop, to supply their customers with cups of tea and coffee, and also with bread and butter, cake, eggs, sandwiches, and other light refreshments to be consumed on the premises. Mr Fitz having ascertained the intentions of Went and Buchanan, and finding that they were fitting up their shop with a view to selling refreshments, commenced proceedings against them (and Mr Iles) for, among other things, an injunction to restrain them from using their premises as a coffee house.
Held: The defendant lessees, were in breach of the covenant in the lease: ‘There are skilled people in the coffee-house trade, coffee house keepers and brokers, who say this is the business of a coffee-house keeper, and the Defendants are using the premises as a coffee-house, although they are also using them for something else. On the other hand, there is evidence to the contrary effect. We must use our common sense. I think this case is really one of degree, and the conclusion to which I have arrived is that in the fair meaning of this covenant the Defendants are carrying on two businesses, one of which is a grocer’s business and the other of which is a coffee-house business, though, perhaps, not a very extensive one. They do not sell everything which coffee-house keepers sell; a coffee house keeper need not sell all sorts of meats and so forth. He may confine himself to light refreshments such as these…. I look upon this as really a new-fashioned coffee-house, but one to which the covenant is applicable.’

Lindley LJ
[1893] Ch 77, [1892] UKLawRpCh 153
Commonlii
England and Wales
Cited by:
CitedJoint London Holdings Ltd v Mount Cook Ltd; Mount Cook Ltd v Joint London Holdings Ltd and Another ChD 2-Mar-2005
A lease created in 1950 included a covenant that the premises should not be used for the business of a ‘victualler, vintner, tavern keeper, vendor of malt liquor, restaurant or coffee house keeper’ without the landlord’s consent. Declarations were . .
CitedMount 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.

Landlord and Tenant

Updated: 28 November 2021; Ref: scu.231046

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