Kalmanovitz v. Rempp

DRAPEAU, J. By this action in unlawful detainer, plaintiff sought to recover possession of certain real property leased to defendants for a café and cocktail lounge, and rentals therefor alleged to be due and unpaid.

Plaintiff and defendant Rempp executed the lease of the premises on December 19,1949, for a term beginning December 20, 1949, and ending March 30, 1956. The rent was $750 per month, in advance, and a sum equal to 6 per cent of [244]the gross receipts from the business. Defendant Rempp, as lessee under the written lease, took possession of the premises. Later he disappeared and left the premises abandoned.

Thereafter, on January 31, 1950, upon the written representation of defendant Lamoreaux that Rempp had leased the premises on behalf of a copartnership consisting of Rempp, Vincent and Lamoreaux, the lease was amended by a writing signed by plaintiff and Lamoreaux which substituted the co-partnership members as lessees in place of Rempp. Subsequently Lamoreaux took possession of the premises and paid the monthly minimum rental of $750 until August 19, 1950.

A three-day notice to pay rent or quit the premises dated September 12, 1950, it was stipulated, was received by defendant Lamoreaux. Complaint was filed September 26, 1950. It alleged that monthly rental, as well as percentages of $987.12, was due.

Defendant Rempp’s answer alleged that the rental agreed upon was $750 per month, or 6 per cent of the gross receipts, “whichever was the greater.”

Defendant Lamoreaux answered averring that the percentage provision in the lease was to apply only in the event that the monthly sales exceeded $12,500. Also, that he and plaintiff agreed that the minimum rental of $750 per month was a payment against the percentage of 6 per cent of gross sales. In addition he averred the deposit in court of $1,500 for rental from August 19 to October 19, 1950. This defendant also set up four affirmative defenses, to wit: (1) custom and practice in the restaurant business; (2) establishment of an account stated; (3) estoppel of plaintiff to deny the construction placed on the lease by defendant; (4) reliance by defendant upon fraudulent representations of plaintiff.

There was evidence that no rent in excess of $750 per month was ever paid, and that this rental was paid up to August 19, 1950, in accordance with statements rendered to defendant by plaintiff’s office. Also, that in May, June and July of 1950, plaintiff asked defendant’s business manager to give him a statement of the gross receipts, but such statement was never made until September 15, 1950, in response to plaintiff’s notice to perform covenants under the lease.