Lawrence Barker, Inc. v. Briggs
| Decision Date | 10 October 1952 |
| Citation | 39 Cal.2d 654,248 P.2d 897 |
| Court | California Supreme Court |
| Parties | LAWRENCE BARKER, Inc. v. BRIGGS et al. L. A. 21947. |
Benjamin J. Goodman and Krystal & Paradise, Los Angeles, for appellant.
Kenyon F. Lee, Los Angeles, Thomas D. Mercola, Beverly Hills, Gibson, Dunn & Crutcher and Sherman Welpton, Jr., Los Angeles, for respondent.
Plaintiff, Lawrence Barker, Inc., recovered judgment entitling it to immediate possession of certain real property leased by it to defendant, Walter M. Briggs. The judgment provided that defendant was not entitled to take anything by reason of his counterclaim and that he was not entitled to a declaratory judgment by reason of his cross-complaint. Plaintiff recovered costs and attorney's fees.
The lease involved in the controversy was entered into on January 1, 1945, for a ten year term by Lawrence Barker, Inc., as lessor, and Walter M. Briggs, as lessee. The lease covered premises consisting of one lot located on Spring Street in the City of Los Angeles, which was to be used by the lessee as a parking lot. Pursuant to the lease, Briggs entered into possession and operated thereon an automobile parking lot or station. Subsequent to the execution of this lease, defendant Briggs, who operated approximately 70 other such lots in the vicinity of Los Angeles, entered into another parking lot lease with another lessor. This subsequent lease covered premises located on Main Street adjacent to the premises in question but separated by a 20 foot public alley. The premises in question will hereinafter be referred to as the Spring Street lot and the Main Street lot. The provisions of the lease involved here are as follows:
'Second: The Lessee covenants and agrees to pay to the Lessor as a monthly rental for the demised premises the sum of One Thousand Two Hundred and Fifty ($1,250.00) Dollars per month, payable in advance upon the 1st day of each month of said term. In addition to the monthly rental payments, Lessee covenants and agrees annually to pay to the Lessor the amount, if any, by which sixty (60%) per cent of the gross income or receipts of the Lessee, derived in any manner, directly or indirectly, from or by the use or occupancy of said demised premises in any one calendar year, exceeds the sum of Fifteen Thousand ($15,000.00) Dollars. Lessee agrees annually to furnish to Lessor a report or statement, prepared and certified by a reputable Certified Public Accountant, showing said gross income or receipts of Lessee from said demised premises, as aforesaid, during the preceding calendar year, paying at the same time any such additional rent shown by said report or statement to be due the Lessor from the Lessee. Said report or statement shall be furnished, and said payment of additional rent, if any be due, shall be made, within a reasonable time after the close of each calendar year of the term of this lease, and in no event later than sixty (60) days after said close of said calendar year. The expense of said report or statement shall be borne by the Lessee.
'Third: The Lessee has deposited with Lessor concurrently with the execution of this Lease certain stocks and securities * * *. Said stocks and securities * * * are deposited for the purpose of, and shall be held as, security to the Lessor for the performance by the Lessee of all the terms, agreements, covenants and conditions of this lease. * * * Title to said stocks and securities, originally constituting said 'deposit', has been transferred or shall be transferred to the name of Lessor, and Lessor may continue to hold said 'deposit' in its own name. * * * In the event that Lessee, shall be in default under any of the terms, agreements, covenants, or conditions of this lease, other than the covenants for the payment of rent, and said default shall continue for the period of thirty (30) days, after notice by Lessor to Lessee, or if default be made in the payment of rent, when the same is due and payable, and said default in the payment of rent shall continue for a period of thirty (30) days, no notice of default in the payment of rent being necessary, Lessor may sell, at public or private sale, with or without notice, any or all of the stock or securities. * * * Upon the expiration of * * * this lease, provided Lessee be not in default at said time, or upon its earlier termination by the mutual consent of Lessor and Lessee, the 'deposit' shall be delivered by Lessor to Lessee and all rights of Lessor in and to said deposit shall thereupon cease and terminate. However, should Lessee, at said expiration of said stated term, the lease having not been terminated earlier by mutual consent, be in default under any of the terms, agreements, covenants and conditions of this lease, said 'deposit' shall continue to be held by Lessor until all such defaults of Lessee are cured, Lessor having during said period of default all of its original rights therein, as if the term of this lease had not expired * * *.
Ninth: It is expressly covenanted and agreed by and between the parties hereto that in case at any time default shall be made by the Lessee in the payment of any rent herein provided for upon the day when the same shall become due or payable, and such default shall continue for ten (10) days, or in case default shall be made by the Lessee in the performance of any of the other terms, conditions or covenants of said lease by said Lessee to be performed, other than the covenant for the payment of rent, and said default shall continue for a period of thirty (30) days after the service of written notice of such default by the Lessor on the Lessee (no notice of default in the payment of rent being necessary), * * * then and in any of such cases, the Lessor may enter into and upon the demised premises or any part thereof and repossess the same, with or without terminating this lease, and without prejudice to any of its remedies for rent or breach of covenant, and in any such event may, at its option, terminate said lease by giving written notice of its election so to do, or may, at its option, let the premises or any part thereof as the agent of the Lessee, or otherwise * * *. The foregoing rights and remedies hereinabove given to the Lessor are, and shall be deemed to be, cumulative, and the exercise of one shall not be deemed to be an election, excluding the exercise by the Lessor at any other or different time of a different or inconsistent remedy, and shall be deemed to be given to said Lessor in addition to any other and further rights given or granted to said Lessor by the terms of paragraph 'Third' herein, or by law, and the failure upon the part of the Lessor at any time to exercise any right or remedy hereby given to it shall not be deemed to operate as a waiver by it of its right to exercise such right or remedy at any other or future time.'
Beginning in 1948, and after defendant had entered into the second lease covering the Main Street lot, when the Spring Street lot was filled with cars, defendant would move the 'overflow' cars from Spring Street across the alley to the Main Street lot. He kept records of the number of cars so moved, but kept no records as to how much rental he received per car. For example, he could not tell whether he had received 25 cents, 50 cents or $1.00 or more for each of the cars moved. In accounting to the plaintiff-lessor, he allowed 25% of the gross receipts on overflow cars parked on the Main Street lot. At about this time, he operated both lots at night with an attendant stationed on the Main Street lot. This attendant serviced cars entering on the Spring Street lot but issued Main Street parking tickets to them. During 1948, and until July, 1949, no records were kept of gross receipts for night parking on the Spring Street lot, although defendant allocated a portion of the Main Street night gross receipts to the Spring Street lot. Defendant continued to use the Spring Street lot as a feeder and driveway for the Main Street lot up until the time plaintiff discovered that method of operation and told him to desist. On July 27th, subsequent to notice given by plaintiff, defendant started to keep a record of night receipts derived from cars entering and parked on the Spring Street lot.
Prior to the commencement of this action, defendant submitted annual reports or statements as required by the lease, although they were not certified, and the reports he did furnish were, with one exception, not furnished within the sixty day period from the close of the calendar year as required by the lease. Plaintiff, prior to 1949, made no objection to the belated and inadequate reports. The 1949 report was submitted within the time provided for in the lease agreement.
Plaintiff, on July 22, 1949, served on defendant written notice of default in which it claimed the right to repossess the premises without terminating the lease and without prejudice to any other rights provided for in the lease. Defendant claimed that he was not in default under the terms of the lease and refused to surrender possession. Plaintiff then brought this action for recovery of possession of the premises, defendant counterclaimed for damages for breach, by the plaintiff, of a covenant in the lease pertaining to a party wall. Defendant also filed a cross-complaint seeking declaratory relief, alleging that the terms and provisions of the lease were uncertain and ambiguous, and seeking an adjudication of the respective parties' rights thereunder.
In the cross complaint it was alleged that defendant had paid the minimum rent up until, and including, June 1, 1949; that commencing July 1, 1949, he has tendered to plaintiff the minimum rent per month plus the sum of $3,707.50 which represented additional rent for the calendar year of 1949 'in accordance with paragraph Second of said lease' but that plaintiff has refused to accept such tender; that the money...
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