Carter v. Adler
| Decision Date | 20 December 1955 |
| Citation | 291 P.2d 111,138 Cal.App.2d 63 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Victor M. CARTER and Adrea C. Carter, Plaintiffs, Cross-Defendants and Appellants, v. Lawrence L. ADLER and Al Helfman, Defendants, Cross-Complainants and Respondents. Civ. 21179. |
Goodman & Cogen and Benjamin J. Goodman, Los Angeles, for appellants.
Kates & Kates, Gerald B. Tannen, Harvey B. Himmel, San Fernando, for respondents.
From a judgment declaring that the lease to defendants does prevent plaintiffs (landlords of defendants) from conducting a supermarket on an adjoining parcel for the sale of merchandise specified in the lease to be sold exclusively by defendants, plaintiffs appeal.
Respondents' original lease was in writing, executed by Williams and Keeler under date of August 20, 1951, and the land will be referred to herein as parcel 1. The premises demised to respondents and designated as units 4, 5, 6, 7, 8, 9, 20, 21, 22 and 23 of a larger parcel of realty were owned by Williams and Keeler and are commonly known as 'Valley Market Town' located at 6127 Sepulveda Boulevard, Van Nuys, Los Angeles County. Pertinent passages of the lease are as follows.
'2. Use of Premises: The demised premises shall be used for the purpose of conducting therein: Grocery, Delicatessen, Meats, Produce, Fish and Poultry, and for no other purpose without the written consent of Lessors.
'It is understood that Lessees have the exclusive rights on Grocery, Delicatessen, Meats, Produce, Fish and Poultry in Valley Market Town, located at 6127 Sepulveda Boulevard, Van Nuys, City of Los Angeles, County of Los Angeles, State of California It is understood that the exclusive rights given herein does not forbid any operator in another category of business from handling any product customarily handled in a similar business operated outside of Valley Market Town. * * *
'3. Rental: Lessees agree to pay Lessors One Thousand ($1,000.00) Dollars per month in advance each month during the term hereof.
'Then, when the gross volume of sales in all departments have reached Fifty Thousand ($50,000.00) Dollars in any month, then the rental shall be one and one-fourth (1 1/4%) per cent only on the gross sales volume of all departments between the amount of Fifty Thousand ($50,000.00) Dollars and One Hundred Thousand ($100,000.00) Dollars in said month.
'Then, when the gross sales of all departments combined shall have reached One Hundred Thousand ($100,000.00) Dollars in any month there shall be paid a rental of only one (1%) per cent of the combined total gross sales over One Hundred Thousand ($100,000.00) Dollars until a maximum rental of Twenty-Five Hundred ($2,500.00) Dollars per month shall have been reached. * * *
'The term 'gross sales' as used in this lease shall mean the total amount of actual gross charges made by Lessees for all merchandise sold and services performed in or from demised premises, whether for cash or other considerations, or on credit, and regardless of collection in payment of such charges. There shall be deducted however, in computing gross sales for each period, the amount of all sales and excise taxes collected from customers during such period and the amounts of any credits or refunds given for merchandise sold on the premises and returned by customers for credit. * * *
'It is hereby agreed by both Lessors and Lessees that if the combined gross volume of sales of the Grocery, Delicatessen, Meats, Produce, Fish and Poultry departments, and any other department covered by this lease and operated by Lessees, falls below the sum of Fifty Thousand ($50,000.00) Dollars gross sales for a period of two (2) months, then, and at that time, Lessors shall have the right upon giving a thirty (30) day notice in writing to Lessees to cancel and void this lease and cause to be vacated all property covered by this lease. * * *
'6. A plot plan of what is legally considered Valley Market Town, 6127 Sepulveda Boulevard, Van Nuys, City of Los Angeles, County of Los Angeles, State of California, including the parking area, shall be made a part of this lease.
'7. Lessees shall have the right to ingress, egress and appropriate use for themselves, their agents, servants, employees and persons doing business with them, of that portion of Lessors' premises consisting of entrances, streets, sidewalks, rest room and toilet facilities, parking spaces and other areas on Lessors' premises, their agents, servants, employees and persons doing business with them, hereinafter referred to as 'common areas,' located at 6127 Sepulveda Boulevard, Van Nuys, California only, and does not refer or have any bearing upon any other property owned by Lessors and adjoining Valley Market Town.
'It is understood and agreed by Lessees that the demised premises are a portion of larger premises owned by Lessors in which Lessors may conduct their own businesses as well as let or lease other portions thereof to other tenants.'
The document was prepared entirely by Williams and Keeler.
In November, 1953, appellants entered the scene. They purchased the entire parcel of ground of which the demised premises are a part. At the same time they acquired all the interest of Williams and Keeler under their lease to respondents. Appellants' plans became ambitious. At the same time of their acquisition of parcel 1 and the interest of Williams and Keeler in the lease to respondents, appellants acquired a longterm lease on a large unimproved parcel of realty from Owen Michel and his wife Louise. It is herein referred to as parcel 2. It lies immediately to the north of, and is adjacent to parcel 1. The two parcels adjoin on the west side of Sepulveda Boulevard with a combined frontage of about 842.5 feet and they comprise a total area of 23 acres. Appellant's purpose in acquiring such leasehold was to increase the area of Valley Market Town by the inclusion of both parcels 1 and 2 and to make the entire area known as 6127 Sepulveda Boulevard, Van Nuys, and to operate the total area under the name of 'Valley Market Town' or 'Mr. Carter's Market Place.'
Pursuant to such purpose, during the latter part of 1953 and continuing through March 1954, appellants published and circulated advertising matter announcing their new acquisitions and their plans to develop their combined area into one supermarket under a single name to be selected by the public. Also, they engaged respondents in conferences relating to their master plan and displayed their maps and drawings to demonstrate their new scheme for an integrated market center on parcels 1 and 2. In the course of their conversations, appellants demanded that respondents yield their exclusive rights under the Williams-Keeler lease, in return for which appellants offered to build for respondents a new market building and would promote increased trade by means of competition within Valley Market Town. The negotiations initiated by such conferences continued for a time. At all times, respondents stood firm for some consideration for the waiver of their exclusive rights to sell the merchandise named in their lease within Valley Market Town.
Notwithstanding respondents refusal to surrender their contractual rights vouchsafed by the original lease, appellants continued to urge their demands while they went forward with the development of their plans for a single integrated market by including both parcels 1 and 2. Not until after appellants' drive for respondents to give up their exclusive rights had failed did appellants suggest the plan of constructing and operating a market on parcel 2 and of 'breaking' respondents. Promptly following the latter's refusal to grant the concessions demanded, appellants filed the instant action for declaratory relief.
Appellants now attack findings III and IV which are set out in extenso in the margin. 1 They now assert that the exclusive rights granted to respondents for the sale of food products were restricted to parcel 1 and did not apply to parcel 2 which was acquired two years after the date of the Williams-Keeler lease. They contend that since there was no parol evidence of the execution of the last-mentioned lease, the interpretation thereof must be based solely upon the written lease. However, it was stipulated that in January 1954, Victor Carter exhibited his drawings to various merchants operating in Valley Market, Town and told them of his intention to develop the entire 23 acres as a single shopping center. Such drawings were received in evidence as Exhibits A, B, C, D and E. 2 They disclose that the proposed single market area was uniformly referred to as having one address only, to wit, 6127 Sepulveda Boulevard, Van Nuys, California, the address of respondents' market. Further evidence of appellants' intentions is found in Exhibit F, a memorandum announcement dated November 25, 1953, and a contest entry blank dated December 10, 1953. Also, Mr. Carter testified with reference to appellants' purposes in acquiring a lease on parcel 2 and in purchasing parcel 1, and that the 'Memorandum to all Tenants of Valley Market Town' advising them to pay rentals to Mr. Carter's Market Place was issued by his employee; that he had conversations with respondents with reference to the lifting of the exclusive rights before he had prepared the plans and drawings already in evidece; that he wished to develop a farmer's market type of shopping center; that respondents conferred but would not agree to waive their exclusive rights. Such evidence fully supports finding III. It is not immaterial. It aids in proving that appellants had no respect for their obligation to respondents as pledged in the Williams-Keller lease, to wit, respondents to have exclusive rights to sell the specified merchandise in Valley Market Town, and appellants' obligation to do nothing that might...
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