Snow v. Winn, No. 51888

• Court: Supreme Court of Oklahoma
• Writing for the Court: OPALA; LAVENDER; HODGES
• Citation: 1980 OK 27,607 P.2d 678
• Docket Number: No. 51888
• Decision Date: 26 February 1980
• Parties: H. L. SNOW, Appellant, v. John WINN and Wayne Winn, Partners, d/b/a Winn Oil Company, and John N. Crim, Appellees.

Page 678

607 P.2d 678 1980 OK 27 H. L. SNOW, Appellant,
v.
John WINN and Wayne Winn, Partners, d/b/a Winn Oil Company,
and John N. Crim, Appellees. No. 51888. Supreme Court of Oklahoma. Feb. 26, 1980.

Page 680

Certiorari to the Court of Appeals, Division 1.

On appeal from District Court, Custer County, Charles M. Wilson, Judge, the Court of Appeals set aside the trial court's order sustaining tenant's "demurrer" to the landlord's evidence and remanded the suit to declare a commercial lease terminated and to quiet landlord's title to the demised premises "for further proceedings." CERTIORARI GRANTED; COURT OF APPEAL'S OPINION VACATED AND TRIAL COURT'S JUDGMENT REINSTATED.

Arney & Millspaugh, Weatherford, for appellant.

Donley, McMillin & Winchester by James R. Winchester, Weatherford, for appellees.

OPALA, Justice:

Plaintiff (landlord) brought this suit to terminate a commercial lease with defendants (tenant) and to quiet his title in the demised premises. The leasehold estate in suit consists of a filling station with car wash facilities situated in the City of Weatherford. Landlord claimed that tenant breached the lease agreement by his (1) "assignment" of the premises to a third party (Operator) without landlord's consent (2) unauthorized alteration of a structure upon the premises and (3) impermissible use of the premises for a convenience grocery store contrary to the "purpose clause" of the agreement. From a judgment sustaining tenant's "demurrer" to the evidence and entering judgment in his favor, landlord appeals. The Court of Appeals viewed, no doubt, the landlord's suit as an action at law. It held that landlord's evidence, considered in its most favorable light, did establish a prima facie case for submission to the trier of fact. On this ground the Court of Appeals reversed the trial court's decision and remanded the cause "for further proceedings." On tenant's petition, we grant certiorari and vacate the appellate court's opinion. Our pronouncement treats the suit as one in equity and views the judgment as not against the clear weight of the evidence.

Landlord's suit to cancel the lease and to quiet title to the property is unmistakably of equitable cognizance. ¹ It is to be governed by the rules of procedure applicable to equitable remedies. ²

In equity a defendant's "demurrer" to the evidence is treated as a motion for judgment in demurrant's favor. Unlike in law actions, demurrer in equity does not require the judge to disregard all evidence favorable to the demurrant's position, but, on the contrary, calls upon the chancellor-trier to consider and weigh all the evidence adduced to determine in whose favor it preponderates. ³ On appeal from the equity order sustaining a "demurrer" to the evidence, the judgment of the trial court must be affirmed unless found to be against the clear weight of the evidence. Whenever possible, an appellate court must in an equity suit render or cause to be rendered that

Page 681

judgment which, in its opinion, the trial court should have rendered. ⁴ An equity judgment need not rest entirely upon uncontradicted evidence. It is not necessarily fatal to its validity if a different conclusion might have been reached upon all of the evidence presented. ⁵

I.

The written lease sought to be declared terminated expressly denies to the tenant the power to assign or transfer his estate without landlord's written consent. The record shows that the demised facility was operated by one Crim (Operator) under what may be called a marketing arrangement with the tenant. The operator received as compensation a four-cent commission on each gallon of gasoline sold and was allowed to receive all the profits from the sales made in the convenience store. Tenant, who owns a local wholesale gasoline company, supplied the station with gasoline, paid all the utilities and all the expenses of repair and maintenance of the building upon the premises. ⁶

An assignment operates to transfer the whole or some specific part of the leasehold estate for the entire remainder of the lease term. A sublease, on the other hand, is a transfer of the whole or portion of the leasehold estate for a specified period that extends for less than the whole term. ⁷ Operator's arrangement with tenant does not amount either to an assignment or sublease. Rather, it is but a license revocable at will to sell convenience store items and market tenant's gasoline on a commission basis. The tenant did in law and in fact retain absolute control and management of the premises. He had the option of hiring and firing employees who worked in the establishment. The operator had no...