Elfstrom v. Brown

GOODWIN, J.,

specially concurring.

I concur in the result of the majority opinion. The lease is sufficiently ambiguous to justify the court in construing it. Certainly the landlords desired to apply the percentage rent to as much of the tenants’ business as possible. Certainly the tenants agreed to subject all their own gross sales and those of their departments and concessions to the percentage rent. Therefore, I concur in the court’s construction of the lease that the disputed sales were by a “concession”. I do not agree, however, with the effect the majority gives the fact that for several years the tenants included the disputed gross sales in the computation of their rent. First, the accountant who calculated the gross sales and rental payments was the accountant for both parties. Second, the tenants have stated that these payments were made without their knowledge. (Both parties stipulated that if witnesses were called, the parties would testify and put on other evidence in accordance with an agreed statement of facts.) Since there is no evidence to contradict this assertion by the tenants we should not imply any falsehood on their part.

Brand, J., concurs in this opinion.