Snow v. Winn, 51888
| Decision Date | 26 February 1980 |
| Docket Number | No. 51888,51888 |
| Citation | 1980 OK 27,607 P.2d 678 |
| Parties | H. L. SNOW, Appellant, v. John WINN and Wayne Winn, Partners, d/b/a Winn Oil Company, and John N. Crim, Appellees. |
| Court | Oklahoma Supreme Court |
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.
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 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
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 estate and paid no rentals. In short, his interest a mere revocable license does not rise to the dignity of an unauthorized assignment or sublease.
The lease provides that at the end of its term the tenant will "peaceably yield up the premises and all erections and additions made on the same . . ." During the tenant's occupancy the automatic car wash area came to be enclosed and enlarged for use as a convenience store. All the objectionable alterations were designed to adapt the premises to tenant's expanded store operations. Inventory increased from the original 30 some items to a full-line convenience store merchandise. It is at this point that the landlord appears to have first voiced his disapproval of tenant's marketing activities as incompatible with the purpose clause of the lease agreement. 8
The lease clearly contemplates "erections and additions" upon the premises and requires no consent for their construction. Nor does it expressly prohibit the tenant from making these changes in the premises. The alterations deemed objectionable enlarged the building and doubtless increased the value of the premises. Whether the lease requires that this added property be dismantled at its termination and that the premises be restored to their original condition is not before us. Suffice it to say, the evidence does not show that the tenant did in fact breach the lease agreement by committing waste in making structural changes harmful to the landlord's estate.
The purpose clause of the lease in suit is as follows:
". . . (tenant) will use said premises for a gasoline service station, car wash and associated activities" (emphasis added)
For proof of tenant's breach of this covenant landlord relies on tenant's use of the premises as convenience store and asserts it is impermissible as an "associated" activity. Landlord's evidence showed he had allegedly had an oral understanding with the tenant, before the lease was signed, that the premises would not be used for a convenience store.
Before the tenant moved upon the leased premises, landlord knew that "Tank and Tummy" would be the name of tenant's establishment and that the store would be selling convenience store items, such as bread, milk, candies and various snack items. Tenant had in fact been selling at the filling station over 30 items in that category ever since it first opened for business in 1972. Since the station facility neither had a wash-and-lube bay nor was used to market tires or car accessories, it seemed to be suitable mainly for "quick stop" gas and convenience food sales.
The trial court held that absent a lease provision expressly prohibiting the sales shown to have been made, a reasonable interpretation of...
To continue reading
Request your trial
-
Lewis v. Sac and Fox Tribe of Oklahoma Housing Authority
...of a written contract when fraud, accident or mistake is relied upon for relief from the binding effect of a contract. Snow v. Winn, Okl., 607 P.2d 678, 682 (1980); Dewberry v. Yellow Manufacturing Acceptance Corp., Okl., 396 P.2d 522, 524 (1964); Lone Star Gas Company v. Oakman, Okl., 283 ......
-
American Economy Ins. Co. v. Bogdahn
...Pitco Production Co. v. Chaparral Energy, Inc., 2003 OK 5, ¶ 14, 63 P.3d 541, 546; Ollie v. Rainbolt, 1983 OK 79, 669 P.2d 275, 279; Snow v. Winn, 1980 OK 27, ¶ 12, 607 P.2d 678, 682; Jeffery W. Stempel, LAW OF INSURANCE CONTRACT DISPUTES, ¶ 4.02 (2d ed.1999)(the parol evidence rule provide......
-
Estate of Eversole, Matter of
...supra note 13 at 374; Estate of Smith v. Williams, Okl., 674 P.2d 17, 19 (1983); Carpenter, supra note 14 at 480; Snow v. Winn, Okl., 607 P.2d 678, 680-681 (1980); Board of County Commissioners of Marshall Co. v. Snellgrove, Okl., 428 P.2d 272, 276 (1967); Wahby v. Renegar, 199 Okl. 191, 18......
-
Mann Theatres Corp. of California v. Mid-Island Shopping Plaza Co., MID-ISLAND
...given to an employee or other agent to enter on the land may be deemed a license (3 Tiffany, Law of Real Property § 829; see, also, Snow v. Winn, 607 P.2d 678 ), it is apparent that the "used by others" provision of paragraph 11 cannot bar the tenant's employees or agents from using the pre......