The opinion of the court was delivered by: WALSH
This matter came before the Court for hearing upon 1) Plaintiff's complaint for injunctive relief; 2) Motion of cross-plaintiff Luxenberg, to add party defendant; and 3) Cross-complaint by Luxenberg against cross-defendant Mayfair for anticipatory breach of contract.
The Court found for the plaintiff on the original action and signed the injunction order on October 27, 1965. The Court granted the third party defendant's motion to add defendant, and signed an order to that effect on October 14, 1965. The only matter now before the Court is Luxenberg's cross-complaint for damages against cross-defendant Mayfair for anticipatory breach of a leasehold agreement.
The Court finds for the cross-defendant. This case does not present an anticipatory breach
I. The Luxenberg-Mayfair Lease
On November 9, 1951, cross-defendant, Mayfair Extension, Incorporated, entered into an agreement with David Luxenberg and Barney Moder, for the lease of certain premises, known and identified as 3926 Hayes Street, N.E., Washington, D.C. The 1951 lease reads in pertinent part as follows:
"The lessees under this lease shall have the exclusive right to conduct a food store in the present existing premises for the duration of their lease, should said premises remain in existence, or until the present building in which said grocery store is located is demolished for reconstruction or replacement purposes. Upon the demolition of the present premises and upon completion of replacement facilities, said lessees shall have the first option to lease the food market and grocery facilities in said replacement facilities for a term at least equal to the unexpired term of this Lease, and for a percentage rental of 1/2% of gross sales, payable monthly."
This lease was modified by an agreement, dated August 9, 1961, extending and amending the terms of the original lease. This agreement reads in pertinent part as follows:
"1. The aforesaid Lease of November 9, 1951, shall remain in full force and effect under all of its terms and conditions, except as herein otherwise provided, in favor of the herein-named lessee.
"2. The term of the aforesaid Lease is hereby extended for a period of five years from November 15, 1961, with an option in favor of the lessee for one renewal of said lease for a period of five (5) years from November 15, 1966, under the same terms and conditions of said Lease as hereby amended provided that the lessee shall notify the lessor on or before September 15, 1966, in writing of election to exercise this option.
"6. The terms and conditions of the aforesaid lease granting to the lessees therein named the first option to lease the said food and grocery facilities which might replace the existing premises after the possible demolition thereof shall remain in full force and effect in favor of the lessee except only that the rate of rental to be paid in such case shall be an amount equal to an bona fide offer which the lessor may receive from another prospective tenant under like conditions as those in favor of the lessee, and in such case the lessee shall have thirty days from the date of the receipt by him of notice of the terms and conditions of said bona fide offer within which to elect to exercise said option to lease the said replaced facilities."
By letter dated April 19, 1963, the lessee exercised his option to extend the lease for an additional five years from November 15, 1966.
The basic lease, the amendment, and the extension letter were recorded with the Recorder of ...