Jenkins v. Rose's 5, 10 And 25¢ Stores Inc

• Decision Date: 25 May 1938
• Docket Number: No. 377.,377.
• Citation: 213 N.C. 606,197 S.E. 174
• Court: North Carolina Supreme Court
• Parties: JENKINS et al. v. ROSE'S 5, 10 AND 25¢ STORES, Inc.

213 N.C. 606

197 S.E. 174

JENKINS et al.

v.ROSE'S 5, 10 AND 25¢ STORES, Inc.

No. 377.

Supreme Court of North Carolina.

May 25, 1938.

Appeal from Superior Court, Iredell County; J. A. Rousseau, Judge.

Action by F. L. Jenkins and others against Rose's 5, 10 and 250 Stores, Inc., to recover a balance allegedly due on a rental contract for the year 1936. From a judgment for plaintiffs, defendant appeals.

Reversed.

Perry & Kittrell, of Henderson, and Lane & Sowers, of Statesville, for appellant.

Scott & Collier, of Statesville, for appellees.

SCHENCK, Justice.

This is an action to recover a balance alleged to be due on a rental contract for the year 1936. The plaintiffs are the owners of a certain storehouse in the City of Statesville which they leased to the defendant, under a written lease, for the year 1933. The lease was renewed for the years 1934, 1935 and 1936. The rents for the years 1933, 1934 and 1935 have been paid and received, and there is no controversy as to them. $2400.00 has been paid and received, without prejudice to other rights, for the year 1936. The plaintiffs allege and contend that there is still due them the sum of $1248.18 on rent for the year 1936. The defendant alleges and contends that the $2400.00 paid and received was a full settlement of the rent due for the year 1936.

The portion of the lease germane to this controversy reads: "(1) The lessors (the plaintiffs) do hereby demise and let unto the lessees (the defendant) and the lessees agree to take and pay for, as hereinafter provided, for a period of one (1) year, beginning the 1st day of January, 1933, and ending the 31st day of December, 1933, the following described premises: 'The two-story brick building now occupied by the lessees, located on Center Street, in the City of Statesville'. (2) The lessees shall have and hold said property with the privilege of quiet and unmolested possession for the term of one (1) year, as above set forth, for which the lessees agree to pay as rental five percent (5%) of the gross sales made by the store operating in said building during the twelve months from January 1st, 1933, to December 31st, 1933; the lessees guarantee the lessors a minimum rental of two thousand four hundred ($2400.00) dollars for said term of one year, which shall be paid in monthly installments of two hundred dollars ($200.00) per month, at the end of each month, said minimum rental of $2400.00 to cover the rental of 5% on the first forty-eight thousand dollars ($48,000.00) of sales made by the store in said building, from January 1st, 1933, to December 31st, 1933, and upon the expiration of said term if said sales shall have exceeded $48,-000.00, the lessees shall account to the lessors for and pay over to them the sum of five percent (5%) on any sales in excess of $48,000.00 so that the total rent paid shall represent 5% on all sales made by thestore in said building during the term of this lease."

The defendant retained the premises under this lease during the years 1933, 1934, 1935 and 1936, and paid to the plaintiffs rents for said years in the sums of $3126.88, $3609.07, $3648.18 and $2400.00, respectively. During the year 1936 the defendant did not operate any store or business in the demised premises, but conducted its business in another location in Statesville.

The difference in the amount of the rent paid and received for the years 1933, 1934 and 1935 and $2400.00 represents 5% of gross sales in excess of $48,000.00...