Bishop Cafeteria Co. of Omaha v. Ford

Decision Date17 July 1964
Docket NumberNo. 35698,35698
Citation129 N.W.2d 581,177 Neb. 600
PartiesBISHOP CAFETERIA COMPANY OF OMAHA, a Nebraska Corporation, Bishop-Stoddard Cafeteria Company, an Iowa Corporation, Appellees-Cross-Appellants, v. Barton H. FORD, an Individual, Appellant-Cross-Appellee.
CourtNebraska Supreme Court

Syllabus by the Court

1. Where the covenant for a renewal is general and does not state the terms of the renewal lease, the new lease is to be upon the same general terms and conditions as the old lease, which are applicable to the renewal period.

2. Whether a particular clause in an original lease is applicable to the new situation arising on the tenant's holding over, depends, not upon the mere wording of the clause or whether the clause is 'usual and ordinary'; but upon the nature of the clause, i. e., whether the 'new situation' is sufficiently similar to the original situation to warrant the inference that the clause is one of the implied terms of the new tenancy.

3. In considering a motion for summary judgment the courts should view the evidence in the light most favorable to the party against whom it is directed, giving to that party the benefit of all favorable inferences that may reasonably be drawn therefrom.

4. The purpose of the summary judgment procedure is not to require a plaintiff to reveal in detail the evidence he expects to produce to prove the allegations of his petition.

5. A motion for summary judgment is not a substitute for a demurrer, a motion to dismiss, or a motion for judgment on the pleadings.

6. The evidence offered on a motion for summary judgment is for the purpose of showing that no issue of fact exists, not to try issues on pleadings, depositions, and affidavits which constitute only a part of the evidence available on a trial on the merits.

7. In order for the movant to obtain a summary judgment it must be shown first, that there is no genuine issue as to any material fact in the case and, second, that movant is entitled to judgment as a matter of law.

8. When it is established that a contract is ambiguous, the meaning of its terms is a matter of fact to be determined in the same manner as other questions of fact which preclude summary judgment.

9. Where a written contract, signed by both parties is complete in itself, and contains and expresses the mutual covenants and promises of both, without ambiguity or apparent omission, and where the statement of the consideration therein is of a contractual nature, and not a mere acknowledgement of receipt, parol evidence is not admissible to contradict, vary, or add to the consideration expressed in the instrument itself.

10. A contract is not ambiguous within that sense merely because it may be difficult to construe. The construction of a contract, if needed, being a question of law for the court as well as a duty that rests upon the court, there can be no ambiguity within the rule to which we have referred unless and until an application of the pertinent rules of interpretation leaves it really uncertain which of two or more possible meanings represents the true intention of the parties.

11. A written contract which is couched in clear and unambiguous language is not subject to a construction other and different from that which flows from the language used.

12. When the provisions of a contract together with the facts and circumstances that aid in ascertaining the intent of the parties thereto are not in dispute, the proper construction of such contract is a question of law.

13. Evidence of an offer or desire to compromise, consisting of a direct offer to buy peace, or settle a controversy without respect to legal liability, is not admissible against the person making it.

14. It is the well-settled common-law rule that where a tenancy is terminated between rent days, there is no apportionment of the rent so as to enable the lessor to recover a proportionate part, and therefore, a lessor cannot apportion rent under a lease at an annual rent and recover rent for part of a year, where, under a proviso in the lease, he terminates the tenancy before the end of a rent year, if the lease does not provide for such apportionment.

15. In general, rent does not accrue as a debt until the tenant has enjoyed the use of the land for the period for which it is payable. Consequently, in the absence of some agreement or understanding between the parties to the contrary, rent is not due until the expiration of the term; and this is true whether the rent is reserved in gross, or on annual, quarterly, or monthly payments. If the tenant is deprived of the use and enjoyment of the property by unavoidable accident or similar contingency before the end of the term, his liability for rent extends only to that time.

McCormack, McCormack & Brown, Boland, Mullin, Walsh & Cooney, A. Lee Bloomingdale and Rodney Shkolnick, Omaha, for appellant.

Leo Eisenstatt, Eisenstatt, Lay, Higgins & Miller, Omaha, for appellees.


BROWER, Justice.

The plaintiffs, Bishop Cafeteria Company of Omaha, a Nebraska corporation, and Bishop-Stoddard Cafeteria Company, an Iowa corporation, lessees of the premises involved, brought this action at law in the district court for Douglas County, Nebraska, against the defendant, Barton H. Ford, the lessor, to recover a judgment in the amount of $132,000.

The plaintiffs base their claim on the termination of a lease by the defendant pursuant to a written cancellation clause in the original lease. This clause, which is hereinafter set forth, provided the lessor might cancel the lease in which event he was to pay the sum of $1,500 a month for the unused portion of the term which originally expired June 30, 1963, but which was extended to June 30, 1968. The plaintiffs claim they are entitled to $1,500 a month for 88 months from March 1, 1960, to and including June 30, 1968, the day of the expiration of the extended term.

The defendant answered admitting liability under the cancellation clause of the lease but only to the extent of $42,000 representing $1,500 a month for 28 months from March 1, 1960, to and including June 30, 1963, the date of the expiration of the term in the original lease. Defendant also pleaded a set-off arising from his claim of the nonpayment by the plaintiffs of a 5 percent percentage on the gross receipts of the lessees' business for the fractional year during which the cancellation occurred on which he claimed $8,281.92 due and unpaid.

Subsequent to the stipulation, both parties filed cross-motions for summary judgment. The trial court granted the plaintiffs' motion and entered judgment in favor of the plaintiffs in the amount of $123,718.08, representing the full amount prayed for in the plaintiffs' petition of $132,000, less the sum of $8,281.92, representing the full amount claimed in the defendant's set-off.

The defendant filed several motions to set aside and vacate the order and judgment of the trial court and enter an order and judgment sustaining the defendant's cross-motion for a summary judgment or in the alternative to grant a new trial. The cross-motion for summary judgment and the motions for new trial were overruled by the trial court and the defendant has thereafter brought the matter to this court by an appeal. The plaintiffs have cross-appealed as to the allowance of the defendant's set-off.

The defendant assigns error to the trial court: In overruling the defendant's motion for a summary judgment; in sustaining the plaintiffs' motion for a summary judgment and entering judgment thereon; in overruling the defendant's motion to set aside and vacate the judgment entered by the trial court on the plaintiffs' motion; in failing to set aside the judgment for the plaintiffs and enter one prayed for by the defendant or to grant a new trial; and in excluding all of the testimony of each of the witnesses John R. McCormack and Robert J. Reinders offered at the time of the hearing on the motion to set aside the summary judgment or grant a new trial and at that time excluding the defendant's exhibits numbered 1, 2, 3, 4, 5, 6, 7, and 10, the assignments of error in respect thereto being made severally.

All of the material facts at the time of the entry of the summary judgment are admitted either by judicial admissions or by stipulation of fact except the affidavit of Cyril L. Kegler, president of each of the plaintiff corporations, which was admitted in evidence at the time of the plaintiffs' motion for summary judgment. The purpose of the affidavit was to show that the plaintiffs, relying on the last extension of the lease, made extensive improvements on the demised premises and on cancellation were put to great expense in moving and attempting to induce their old customers to patronize them at their new location.

The uncontroverted facts are that on or about March 15, 1948, the plaintiff, Bishop-Stoddard Cafeteria Company, as lessee, and the Redick Corporation, as lessor, entered into a lease agreement involving premises in the city of Omaha, Nebraska, which were to be used for restaurant and cafeteria purposes. The lease was for a term of 5 years beginning July 1, 1948, and ending June 30, 1953. By a rider attached thereto, the original lease gave to the lessee and lessor, and each of them, an option to extend the lease for an additional term of 10 years from July 1, 1953, to June 30, 1963, by giving notice of the extension during the months of April, May, or June 1953. Immediately following the provisions in the lease which granted the option to extend the lease is a cancellation clause which provides as follows:

'It is further understood and agreed that in the event the above option is exercised by either party and the Lessor makes a bona fide sale, or a long time lease for a term of 50 years or longer, of the building of which the leased premises are a part, then the Lessor may at any time...

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