Fairchild Realty Co. v. Spiegel, Inc. , 246 N.C. 458 ( 1957 )

Higgins, J.,

dissenting: The plaintiff had a rental contract with Spiegel which called for the payment of $1,250 per month plus a percentage of the sales above a fixed amount. The total annual rental amounted to about $35,000. The lessor is a large corporation with a net worth of more than $40,000,000.00, with vast experience and a history of splendid success in the retail sales of furniture. The plaintiff is and has been willing to continue this rental contract with Spiegel.

However, this controversy arose by reason of the refusal of the lessor to approve a sublease to Morrison-Neese, a new corporation with $32,000 capital and its prospects of success questionable. Approximately two-thirds of the plaintiff’s rent came from the percentage on sales. The plaintiff, therefore, has a vital interest in the amount of sales. It cannot in good conscience be expected to approve a transfer of the business to another tenant whose prospects are doubtful. The plaintiff refused to receive rent, from the sub-lessee but continued to receive payments from the original lessee. In my opinion the trial court’s finding that the plaintiff had not waived its right to refuse approval of the transfer is supported by competent evidence.

There is some question about the form of the judgment. I vote to modify and affirm.