Dickenson v. Samples

MOORE, P. J.

Plaintiff Dickenson seeks reversal of a judgment entered pursuant to a verdict denying him relief in his ' suit to recover rentals from defendant. The latter also appeals from the same judgment denying him relief on his cross-complaint seeking damages for an alleged breach of contract on the part of plaintiff.

Dickenson was the owner of certain business property in Santa Paula which he leased to defendant and one Pace for the operation of a billiard parlor. The lease was in effect from October, 1946, until early March, 1948. In the following month plaintiff leased the premises to defendant and his new partner Ed Davis who is also named a cross-defendant. Varying sums were paid as rentals from April through December, 1948. At that time Davis withdrew from the business, and defendant thereafter continued its operation alone until April 10, 1949, when he vacated the property in compliance with plaintiff’s notice terminating the tenancy. No rentals were paid after December, 1948.

The evidence is conflicting as to the amount of rent which was to be paid for the premises. Plaintiff testified that it was agreed that the rent was to be $125 per month, or one third of the net profits of the business, whichever was larger. Defendant testified that the rent was to be one third of profits and not otherwise.

A loss was sustained in January, 1949, but a profit of $163 resulted in February. There was no evidence as to what occurred during the months of March or April.

Plaintiff’s Appeal

It is plaintiff’s contention that the jury erred as a matter of law in finding that no rentals whatsoever were due him. He argues that the evidence without dispute established defendant’s obligation to pay from January 1 to April 10, 1949, on the basis of either the agreed minimum sum of $125 per month or on one third of the net profits realized.

There is a conflict in the evidence as to an agreement for rentals at an agreed minimum figure. Consequently this

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court is bound by the jury’s implied finding that no such agreement was made. However, defendant admitted that the rentals were to be one third of the profits and since the evidence without conflict shows a profit of $163 in February, 1949, plaintiff is entitled to the sum of $54.33 for that month. Evidence which is uncontradicted and not inherently improbable may not be disregarded by the trier of fact.