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Harvey v. Rolands of Bloomington

MAY 28, 1968.

THOMAS B. HARVEY AND HARRIET H. BIGGS, PLAINTIFFS-APPELLANTS,

v.

ROLANDS OF BLOOMINGTON, INC., A CORPORATION, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of McLean County; the Hon. WALTER A. YODER, Judge, presiding. Reversed and remanded with directions.

SMITH, P.J.

Rehearing denied June 24, 1968.

We are asked to construe the following:

"2. Tenant agrees in consideration of said extensions from Landlord, to pay an annual rental for said premises as follows:

"(a) Beginning September 1, 1960, to September 1, 1961, a minimum rental of $6,000.00 plus the cost of insurance and taxes.

"(b) Beginning September 1, 1961, . . . a gross rental of 5/8 of 1% of tenant's owned departmental sales . . . less the cost of insurance and taxes paid, OR $6,000.00 a year, plus the cost of insurance and taxes, whichever computation produces the greater amount. . . ."

Plaintiffs, the landlord, sued the tenant for arrearages covering four rental years. They lost and now appeal. We are only concerned with subparagraph (b), but (a)'s inclusion is apropos. For the (a) rental year tenant paid landlord the minimum rental of $6,000, and into the bargain the taxes and cost of insurance. The minimum rental was not $6,000 the cost of insurance and taxes, rather it was $6,000 and also the tenant paid the taxes and insurance. As we shall see, it makes a difference whether "plus" is synonymous with "" or with some such phrase as "and also," "over and above," "into the bargain," "besides," etc.

The dispute involves the interpretation to be given the phrase, "OR $6,000.00 a year, plus the cost of insurance and taxes, whichever computation produces the greater amount. . . ." The landlord reads this to mean that the first alternative (% of sales, less cost, etc.) is to be placed alongside $6,000 and the "greater amount" represents annual rent. They do not read it to mean that the first alternative should be compared with $6,000 the cost of insurance and taxes. In reply, the tenant says that the "greater amount" is the larger of either % of sales less cost, etc., or $6,000 cost, etc., and that when so determined, further computations are necessary as "the greater amount" does not equal annual rent. We have reduced their respective positions to the following formulae:

THE LANDLORD'S

% of sales less taxes and insurance paid by tenant = X

OR

$6,000

If X is greater than $6,000, X = annual rental

If X is less than $6,000, annual rental is $6,000, in addition, tenant pays taxes and cost of insurance

THE TENANT'S

% of sales less cost of insurance and ...


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