HOLMES, Circuit Judge.
This appeal is from a final judgment that cancelled a contract dated April 22, 1948, between appellants and appellees, who will be referred to as lessee and lessor, respectively. There is no serious dispute about the validity of the contract under the law of Mississippi. The question is one of its interpretation. This court will not undertake to make a contract for the parties.
The lessee further agreed that, during the first twelve months of its possession, its payroll for the factory to be operated therein would be not less than 50% of the cost of the building to the lessor; and, for each year thereafter during the primary term of the lease, the lessee guaranteed that its minimum payroll for people employed in said factory would be not less than 100% of said cost, which annual guarantee was to continue until the total amount of the lessee's payroll payments equalled fifteen times said cost of the building. The aforesaid guarantee was subject to the limitation, amount others, that the entire liability of the lessee for failure to meet the minimum guaranteed payroll was limited to 10% of the deficiency.
We think that the lessor is not entitled to a cancellation of the lease, but is entitled to an injunction restraining the lessee from using the leased premises as a warehouse in conjunction with its factory at Union, Mississippi, or for any purpose other than a shirt or garment factory operated upon the leased premises and uses necessarily incidental to the factory so operated.
The judgment appealed from is reversed, and the cause remanded to the district court for further proceedings not inconsistent with this opinion.
RIVES, Circuit Judge (dissenting).
The express purpose of the 1944 Act here involved,
Certainly the Mississippi legislature, in passing the 1944 Act, never intended to authorize issuance of bonds pledging public property if the funds derived therefrom would be used, not to attract industry and promote employment, but to construct industrial sites either to remain vacant or be used only for storage purposes. Indeed, the County could not lawfully have entered into any private contract pursuant to the B.A.W.I. law, except to effectuate the legislative purpose of promoting employment in industry. Albritton v. City of Winona, 181 Miss. 75, 178 So. 799, 808, 115 A.L.R. 1436.
In addition to the evidence establishing appellants' breach of the lease contract, there is a further reason why I do not think a reversal and remand are here indicated. That is the inherent difficulty and impracticability of enforcing the terms of the Court's decree. The problem of obviating forfeiture of the lease through constant Court supervision of appellants' business was recognized by the District Court.
I would affirm the judgment of the District Court, and therefore respectfully dissent.
On Petition for Rehearing
Since neither of the judges who concurred in the decision of the court in this case is of the opinion that the petition should be granted, it is ordered that the petition for rehearing be, and the same hereby is, denied.
RIVES, Circuit judge, dissents.
"* * * the contract was breached and that the Defendants have not and do not intend to operate the premises as a garment manufacturing plant or as a shirt manufacturing plant, and that their intention to abandon it as such began in April or May of 1950 and has continued to the present date, and that such abandonment of the contract and its expressed principles constitutes a breach that entitles the Plaintiffs to a rescission and cancellation of the contract."