Clark v. Tide Water Associated Oil Co.
| Decision Date | 17 July 1950 |
| Citation | 220 P.2d 628,98 Cal.App.2d 488 |
| Court | California Court of Appeals Court of Appeals |
| Parties | CLARK et ux. v. TIDE WATER ASSOCLATED OIL CO., a Delaware Corporation. Civ. 17518. |
W. F. Kiessig, Edmund D. Buckley, San Francisco, Harrison Guio, Los Angeles, and Charles O'Gara, San Francisco, for appellant.
Robert E. Krause and Allen R. Steele, Long Beach, for respondents.
Plaintiffs own a large combination truck and passenger-car service station in Long Beach. They leased it to defendant corporation for a term of twenty years commencing on August 1, 1947. For about eighteen months prior thereto, plaintiff husband had successfully operated said station.
By the terms of the lease defendant agreed (1) to pay a monthly rental of 1cents per gallon of gasoline, 1/2cents per gallon of diesel, and 1/2cents per gallon of butane sold by it at and from the station, the minimum rental to be not less than $170 per month (paragraph 3); (2) to operate the service station 'in good faith and with reasonable diligence in conformity with the operating standards of lessee' (paragraph 3a); (3) to commence to install butane storage and dispensing facilities within 90 days after August 1, 1947 (paragraph 14).
Paragraph 4 of the lease provides that 'If during the term hereof, or any extension thereof, Lessee shall default in the payment of rental or in the keeping or performing of any of the covenants or conditions herein contained to be kept or performed by Lessee, and if such default shall not be corrected within a period of twenty (20) days after receipt of written notice from Lessor, specifying said default, Lessor shall have the right at Lessor's election to terminate this lease or to re-enter the demised premises and remove all persons therefrom or to take any other action for the enforcement of any right or remedy available to Lessor by law or equity.'
On May 27, 1948, plaintiffs commenced the instant action to recover damages for breach of the terms of the lease. The first cause of action alleged failure to operate the station in conformity with the operating standards of defendant, as required by paragraph 3a, resulting in damage to the extent of $4,850. The second cause of action alleged failure to commence installation of the butane facilities under paragraph 14, and prayed for damages in the amount of $4,850, or a total of $9,700, plus reasonable attorneys' fees.
The cause was tried with a jury, and during the trial defendant's motions for nonsuit and directed verdict were denied. A verdict was returned in favor of plaintiffs for $4,000 on the first cause of action; for $1,000 on the second cause of action, and the court fixed attorneys' fees at $500. Judgment was entered accordingly for a total of $5,500, from which defendant appeals.
It is here contended that the court's refusal to grant the motions for nonsuit and directed verdict was error justifying reversal of the judgment for the following reasons:
(1) Failure of respondents to comply with paragraph 4 of the lease by giving the 20 day notice of default which, it is urged, was a condition precedent to the right to sue.
(2) Respondents' assignment of all rentals to the Bank of America as security for a promissory note made the bank a necessary party to the action.
(3) By their letter to appellant dated December 17, 1947, respondents waived their cause of action for failure to install the butane facilities.
It is also urged (4) that the trial court erred in admitting evidence of respondents' prior operation of the service station as a yardstick to determine the operating standards of appellant and the amount of damages sustained; (5) that assuming the respondents' theory of the measure of damages is correct, the verdict was grossly excessive and without support in the evidence; (6) that the trial court erred in the admission and exclusion of...
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Atalla v. Ambartsumyan
...of the third amendment to the lease seeking recovery of their alleged $90,000 in expenditures.Relying on Clark v. Tide Water Associated Oil Co. (1950) 98 Cal.App.2d 488 (Clark), the trial court ruled Atalla and Hanna's compliance with the lease's provisions for written notice and an opportu......
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