Gianni v. R. Russell & Co.

Frank Gianni (plaintiff) rented a room in an office building where he conducted a business selling tobacco, fruit, candy, and soft drinks. After R. Russell & Co. (Russell) (defendant) acquired the office building, its agents entered into leasing negotiations with Gianni with regard to Gianni’s continued rental of the room. A lease was signed for a three-year term and provided that Gianni could use the premises only for the sale of fruit, candy, and soda water, but could not use it to sell tobacco. There was no stipulation in the lease that Gianni had an exclusive right to sell soft drinks in the building. Shortly after the lease was signed, Russell leased a room, adjoining Gianni’s room, to a drug company without restricting its right to sell soda water and soft drinks. Gianni commenced an action against Russell for breach of an alleged oral contract alleging that the drug company’s sale of these beverages had greatly reduced his revenue. Gianni contended in the action and offered the testimony of a witness at trial that several days prior to the execution of the lease Russell’s agent made an offer, which he accepted, that he would have the exclusive right to sell soda water and soft drinks. Gianni did not produce a witness to support his contention that this offer was repeated at the time the lease was executed. Russell’s agents denied making any such offer either prior to or at the execution of the lease. The trial court entered judgment for Gianni. Russell appealed.