Wommack v. McClure

SCHOTTKY, J. Plaintiffs M. V. Wommack and Arlie R. Wommack, his wife, have appealed from a judgment in favor of defendant and from the order of court denying plaintiffs’ motion to vacate the judgment and for new trial. Plaintiffs sought declaratory relief, cancellation of a lease, and damages.

Appellants are lessors and respondent is the lessee of premises used by respondent for a truck terminal in Sacramento, California. It consists of a service station, truck terminal, and a large storage and repair building near the rear.

Under the lease the premises are divided into two portions. One of these is the “service station portion” under paragraph 3, which also includes approximately 50' x 40' in the northwest corner of the main building, and the other is the 1 ‘ garage portion” under paragraph 4, which provides for the rental “for that portion of the premises not described in Paragraph 3.” Different rental formulas are provided for each of the areas. Under paragraph 3, rental was a percentage of the fuel sales with a minimum of $350 per month. Under paragraph 4, rental was a percentage of “all business done” on that portion with a minimum of $250 per month. Paragraph 4 also provided: “The parties do not contemplate the use by the Tenant, himself, of that portion of the premises and that portion of the personal property which is the subject matter of paragraph 4. The subletting of the same by the Tenant to a Sub-Tenant is the plan and agreement of the parties. The certificate, accordingly, giving expression to the net gross sales and charges for any month will of necessity be prepared by the Tenant’s Sub-Tenant rather than by the Tenant, himself.” Paragraph 4(a) of the lease provided: “It is the express agreement of the parties that there shall be no rental [643]obligation on the tenant (minimum or additional percentage rental) during any period that the tenant is without a subtenant in the actual use and occupation of that portion of premises and that portion of the personal property which is the subject of paragraph number four (4).”

The lease became effective in March, 1948, and from that time until March, 1949, the garage premises were occupied by a subtenant and the rental was paid regularly. Since that time the garage has had intermittent periods of occupancy and vacancy, and this fact has caused the difficulties resulting in this litigation.

The trial court found that during the months of May, 1949, December, 1949, November, 1950, and February, 1951, C. E. Jacobs stored ice cream trucks on the garage premises with the knowledge and consent of the plaintiffs; that all of the rental paid by Jacobs was paid to plaintiffs, and plaintiffs waived the right to require rental payments by defendant as to the $250 minimum; that in August and September, 1951, Frank Hayashida stored trucks on the garage premises with the knowledge and consent of the plaintiffs; that all of the rental except $10 received by the defendant from Frank Hayashida was paid to the plaintiffs, and plaintiffs waived the $250 rental requirement of the defendant; that in August, September, October, November and December, 1952, and January, 1953, Glenn Wommack, the son of the plaintiff M. V. Wommack, occupied the garage premises with the express agreement that no rental was to be charged the defendant; that from October, 1952, until the time of trial, a certain 30 feet x 60 feet space in the northeast corner of the garage portion was occupied by Dan Caw; that plaintiffs had agreed and consented to withdraw this portion from the lease and to allow the defendant the use of this portion for any purpose without the obligation of rental; that during April, July and September, 1953, the firm of Norman and Goodman occupied the garage premises and plaintiffs expressly accepted $100 in full payment of rental from that firm and waived the right to further payment by defendant.