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District Court of Appeal, Second District, Division 1, California.


Civ. 19983.

Decided: June 28, 1954

John J. Wheeler, John J. McCue, Lewis Watnick, John L. Wheeler, Los Angeles, for appellant. Mark L. Herron, Fred Horowitz, Alvin F. Howard, Los Angeles, for respondent.

This is an appeal from a judgment in favor of the plaintiff landlord against the defendant tenant for rental due pursuant to a lease.

The lease in question was executed by Lazard Lippman as lessor and Sears, Roebuck & Co., a New York corporations, as lessee, on December 13, 1940, to run from January 1, 1941 to December 31, 1950. It provided for a monthly rental in the sum of $285 plus 2 1/212 per cent of the appellant company's annual sales of the first $163,200 in excess of $136,800, and 2 per cent of the remainder.

The lease further provided that the premises were ‘to be occupied for the sale and storage of general merchandise and for servicing automobiles, automobile tires, batteries and accessories.’ In the event the tenant assigned the lease or sublet all of the premises the monthly rent was to be equal to the average monthly rent paid during the preceding twelve months. In the event of abandonment of the premises the tenant was to pay the difference between the rent collected by the landlord upon reletting and the rent reserved.

The complaint alleged that the appellant ceased doing business on the premises on January 1, 1950, that the average rental for the preceding twelve months was $20,424.82, that only $3,400.08 was paid, leaving a balance due of $17,024.74.

The trial court found that the appellant ceased to occupy the premises for sales on November 1, 1949, that the sum of $3,420 was paid, leaving a balance due the respondent of $17,004.82.

It is significant that the respondent sued entirely in reliance upon the provisions of the lease. Neither reformation of the lease nor other equitable relief was sought.

Over objection of appellant, testimony was permitted regarding negotiations between the parties leading up to execution of the lease. Despite our ultimate conclusion that this evidence was inadmissible, we shall review it briefly.

In 1940 the appellant corporation (hereinafter sometimes referred to as Sears) was operating a store in a building owned by a Mrs. Russell in the city of San Fernando. The lease between appellant and Mrs. Russell called for a flat rental of $285 per month and in 1940 the lease had eight more years to run.

During that year the building was substantially destroyed by fire and since Mrs. Russell was not insured, she was either unable or unwilling to rebuild the structure. Shortly thereafter Samuel Edward Jones, for many years in charge of Sears' property department for the Pacific Coast, called respondent to his office and suggested that it might be profitable for him to purchase this property, construct a building and lease it to Sears. At this time respondent was leasing a building to Sears in El Centro and apparently their relationship was mutually satisfactory.

Pursuant to that suggestion respondent conducted negotiations with Mrs. Russell and ascertained costs for reconstructing the store. He testified he subsequently indicated to Jones that to undertake the proposition he would need a rental of $800 a month. There were further conversations relative to the amount of the rental, during which Jones stated the company would not pay that amount but would agree to a minimum guarantee of $285 against a percentage of sales. Mail order sales were to be excluded from the computation.

Thereafter plans and specifications for the building were prepared in Chicago by the construction department of Sears. The building was completed November 1, 1940, and Sears immediately occupied the premises with a retail store. The parties did not enter into the written lease until December 13, 1940; it was to become effective January 1, 1941, and to run until the end of 1950.

Respondent testified he paid $38,000 for the land and the building in its damaged condition, that it cost $8,000 to tear down and remove the structure and debris, that his cost of rebuilding, not including any sum for his own services as a contractor, was $29,255.82. Thus, excluding any consideration of respondent's time, overhead, interest and taxes during construction, he expended $75,255.82.

In 1945, Russell A. Veach, Jones' successor at Sears, requested the use of four lots which respondent had acquired near the San Fernando store. He declined to pay any rent therefor, maintaining that the use of the lots for parking facilities would increase the sales in the store and consequently the percentage return to respondent. The latter acquiesced.

During January of each year respondent received a statement showing the prior year's net sales made on the premises. For the calendar year preceding the one involved herein, Sears, under the terms of the lease, paid to respondent the minimum rental payment of $3,420 and additional rent in the sum of $17,424.82, upon net sales of $981,440.92.

On November 1, 1949, Sears ceased to transact sales on the leased premises and began business operations a block away from the premises involved herein. During the remaining fourteen months of the term Sears used the premises for the storage of general merchandise and during that period paid rent at the rate of $285 per month.

Upon expiration of the lease on December 31, 1950, Sears continued to occupy and use the premises for the storage of merchandise pursuant to a later agreement. During this period the agreed rental was $300 per month.

After discussions for the subsequent occupancy had been concluded, Veach requested of his staff preparation of a letter memorandum for respondent's signature. When prepared, this document contained language which could be construed to be a release by respondent of the claims he might have under the lease of December 13, 1940. Upon assurace of Veach that this letter, dated January 2, 1951, did not refer to rental claims under the prior lease but merely to eliminating the possibility of a percentage claim during the holdover period, the respondent signed the instrument.

Apparently this letter of January 2, 1951, was not produced at the trial for the purpose of urging seriously a waiver of any rights by respondent, but merely to indicate conduct of the parties.

The trial court found that the minimum monthly rental of $285 ‘was intended to be and was, in fact, a nominal rental and was not a substantial or adequate minimum rental.’ The court further found that the lease provided ‘In the event the defendant did not occupy said premises for the sale of general merchandise but used said premises for the storage of merchandise, it was to pay plaintiff a monthly rental equal to the average monthly rental it had paid for the twelve months immediately preceding the month in which it ceased to use said premises for the sale of merchandise.’

The court further found that the latter of January 2, 1951, was not a complete satisfaction of the existing controversies between the parties.

The appellant has assigned as error each of the foregoing findings on the ground that they are not supported by the evidence and are contrary to law.

The trial court, over objection of appellant, permitted parol evidence to disclose negotiations precedent to the execution of the written lease. In this it fell into unfortunate error. For in the construction of an instrument, the office of the judge is simply to ascertain and declare what is in terms or in substance contained therein, not to insert what has been omitted, or to omit what has been inserted. Code Civ.Proc. § 1858.

Morgan v. Green, 86 Cal.App. 216, at page 222, 260 P. 596, at page 598, succinctly relates the principle: ‘The rule is found in section 1856, Code of Civil Procedure, which declares that when the terms of an agreement have been reduced to writing it is presumed to embrace all the terms agreed upon. The decisions are all in harmony with the section of the Code running from Harrison v. McCormick, 89 Cal. 327, 330, 26 P. 830, 23 Am.St.Rep. 469, to Thoroman v. David, 199 Cal. 386, 390, 249 P. 513. We cannot improve upon the language of Thompson v. Libby, 34 Minn. [374,] 377, 26 N.W. 1, quoted in the Harrison Case and approved in the later decisions:

“If it imports on its face to be a complete expression of the whole agreement—that is, contains such language as imports a complete legal obligation—it is to be presumed that the parties have introduced into it every material item and term; and parol evidence cannot be admitted to add another term to the agreement, although the writing contains nothing on the particular one to which the parol evidence is directed.'

‘Upon the theory first advanced by respondents that the evidence was admissible because the writing did not include all the terms agreed upon—the rule is uniform that evidence of such collateral agreements is admissible only when the circumstances attending the execution of the writing show that the parties did not intend it to be a complete and final statement of the whole transaction. 10 Cal.Juris. p. 927. The lease here does not come within this exception. It appears upon the face to be a complete statement of the undertaking of the respective parties without any uncertainty as to their respective legal obligations within the rule of Harrison v. McCormick, supra. Gardiner v. McDonogh, 147 Cal. 313, 319, 81 P. 964, and Germain Fruit Co. v. [J. K.] Armsby Co., 153 Cal. 585, 595, 96 P. 319.’

Of course, no rule is inviolately exempt from exception, and in this the parol evidence rule is itself no exception. Where the instrument on its face bears an ambiguity or uncertainty, then testimony may be permitted to relate the circumstances under which the document was executed. The purpose is to enable the trier of fact to fathom the intent of the parties, not at the present time, but at the moment of the meeting of the minds.

There are numerous cases illustrative of the foregoing, among them: Fleuti v. Appledorn, 86 Cal.App. 209, 260 P. 601; Petroleum Midway Co., Ltd. v. Moynier, 205 Cal. 733, 272 P. 740; Pierce v. Walter, 129 Cal.App. 228, 18 P.2d 345; Johnston v. Courtial, 216 Cal. 506, 14 P.2d 771.

A few jurisdictions permit parol evidence to indicate the intended use of premises when the lease is silent on the subject. Chamberlain v. Brown, 141 Iowa 540, 120 N.W. 334; Surface v. Brock, 142 Kan. 805, 51 P.2d 1005; Asa G. Candler, Inc., v. Georgia Theater Co., 148 Ga. 188, 96 S.E. 226, L.R.A.1918F, 389.

But the vast majority hold that where the lease does not restrict the use of the premises, it may not be shown that there was an oral understanding of restriction. Morgan v. Green, supra; Wetzler v. Patterson, 73 Cal.App. 527, 538, 238 P. 1077; Harrison v. Howe, 109 Mich. 476, 67 N.W. 527; Snead v. Tietjen, 3 Ariz. 195, 24 P. 324; Rickard v. Dana, 74 Vt. 74, 52 A. 113; Van Liew v. Mally, 198 Iowa 347, 197 N.W. 299; Fuller v. Caraway, 97 Okl. 110, 221 P. 79; Barnett v. Clark, 225 Mass. 185, 114 N.E. 317; Rockwell v. Eiler's Music House, 67 Wash. 478, 122 P. 12, 39 L.R.A.,N.S., 894; Colonial Operating Corp. v. Hannan Sales & Service, 265 App.Div. 411, 39 N.Y.S.2d 217.

On this appeal we are not prevented from inquiring into the propriety of the admission of parol. For it is well settled in construing a contract, the question as to whether an uncertainty or ambiguity exists is one of law, and the lower court's finding on this issue is not binding on appeal. Brant v. California Dairies, Inc., 4 Cal.2d 128, 133, 48 P.2d 13.

The admission of parol is not discretionary with the trial court. For the parol evidence rule is in no sense a rule of evidence; it does not concern a probative mental process, but declares that certain kinds of fact are legally ineffective in the substantive law. Wigmore on Evidence, 3d Ed. § 2400.

In the instant case, respondent has called to our attention no ambiguous or uncertain language in the lease, and we have found none. What he has proposed is to provide omitted terms relating to the use and occupancy required of appellant, and rental to be exacted from it in the event of a breach.

Hoffman v. Seidman, 101 N.J.L. 106, 127 A. 199, at page 200, presents a markedly analogous situation, revealed in the following quotation: ‘the written lease was complete on its face, and oral testimony, either to contradict it or to supply terms with respect to which the writing was silent (as the testimony offered would have done), will not be permitted, in the absence of fraud or illegality. (Cases cited.)

‘But the defendant argues that the phrase, ‘nor use or permit any part thereof to be used for any other purpose than a dwelling and a hardware and paint store,’ is ambiguous. We think it is not. We think it perfectly clear that the whole purpose of that clause was to exclude any other use, but to permit the uses mentioned, not necessarily conjunctively, but either of them or both, and at such times as the tenant sees fit to so use them, and that he was under no obligation to use the premises at all, or at any time to reside there, or at any time to keep a store there. The language used is restrictive, not mandatory. * * * Of course, it does not follow, because the parties used the conjunctive instead of the disjunctive, that they thereby rendered their lease ambiguous, and opened the door to oral testimony. When, as here, the meaning of the language of the lease is plain and unambiguous when read in connection with the context, parol evidence as to its meaning is not admissible.'

The words of caution expressed in Payne v. Commercial Nat. Bank, 177 Cal. 68, 72, 169 P. 1007, 1008, L.R.A.1918C, 328, must be heeded: ‘no authority sustains the proposition that under the guise of construction or explanation a meaning can be given to the instrument which is not to be found in the instrument itself, but is based entirely upon direct evidence of intention independent of the instrument. It has been well said that in the admission of extrinsic evidence the line which separates evidence which aids the interpretation of what is in the instrument from direct evidence of intention independent of the instrument must be kept steadily in view, the duty of the court being to declare the meaning of what is written in the instrument, and not what was intended to be written.’

An implication cannot rest solely upon an inference to be drawn from the facts surrounding the execution of the lease. It must have a basis in the lease itself. Stockton Dry Goods Co. v. Girsh, 36 Cal.2d 677, 680, 227 P.2d 1, 22 A.L.R.2d 1460.

By all of the foregoing tests, admission of parol evidence was erroneous in this case. That alone would suffice for a reversal of the judgment. Nevertheless several other issues earnestly raised by counsel merit our review.

As stated heretofore, the lease provided the premises were ‘to be occupied for the sale and storage of general merchandise and for servicing automobiles, automobile tires, batteries and accessories'.

Although the specified uses are in the conjunctive, appellant maintains, first, that such provisions are permissive rather than restrictive, and that any lawful business may be conducted on the premises; or second, any one of the named uses, not necessarily all, would satisfy the requirement of occupancy.

On the other hand, the trial court found that the lease provided for Sears to use the premises for sales, or if it did not, then to pay a rental based on previous sales. We have searched the lease in vain for any such specific provision. Nevertheless, argues respondent in effect, even if one cannot put his finger on a numbered page and line of the lease, this is implied in the terms.

Where words used in a lease are merely descriptive of the character of the premises, although indicating a particular use, the great weight of authority is to the effect that such words of description cannot be construed as restrictions upon the lessee in his use of the property. 148 A.L.R. 585. Security Trust, etc., Bank v. Claussen, 44 Cal.App. 735, 737, 187 P. 140, 141, goes even farther and holds ‘Defendant was not limited in the use thereof to conducting [the named] business, but might carry on any lawful business therein’.

Appellant has called our attention to the doctrine of ‘commercial frustration’, enunciated in Lloyd v. Murphy, 25 Cal.2d 48, 153 P.2d 47, but that is not particularly helpful to its position. That rule depends upon unanticipated circumstances or fortuitous, frustrating events rendering performance either impossible or extremely impracticable. It cannot be extended to embrace deliberate creation of the circumstances by one of the contracting parties.

There are cases in many jurisdictions holding that where a particular use is specified, any other use may be enjoined. Weinkrantz v. Southwestern Life Ins. Co., Tex.Civ.App., 264 S.W. 550; Davis v. Des Moines & Ft. D. R. Co., 155 Iowa 51, 135 N.W. 356; Grinnell Bros. v. Asiuliewicz, 241 Mich. 186, 216 N.W. 388; Collins v. Truman, 223 Mo.App. 186, 14 S.W.2d 526.

However, 148 A.L.R. p. 591, notes that: ‘* * * there is an evident tendency against drawing too fine a line of distinction between the exact business enterprise specified and certain closely related uses which appear to be sanctioned by custom.’

Though counsel has made a valiant effort to distinguish the case of Cousins Inv. Co. v. Hastings Clothing Co., 45 Cal.App.2d 141, 113 P.2d 878, it contains a set of facts not unlike the instant case, and it would appear to establish the controlling California rule. There was a term lease, providing for a minimum guaranteed rental plus a percentage of sales. The lessee vacated the premises and began operations in a new location approximately two months prior to expiration of the lease. Although the lease was silent on the subject, the trial court found an implied covenant requiring the lessee to remain in business on the premises. This judgment was reversed (hearing denied by the Supreme Court), the court succinctly concluding, 45 Cal.App.2d at page 149, 113 P.2d at page 882: ‘Summarized, therefore, the rules deducible from the foregoing authorities controlling the exercise of judicial authority to insert implied covenants may be stated as follows: (1) The implication must arise from the language used or it must be indispensable to effectuate the intention of the parties; (2) it must appear from the language used that it was so clearly within the contemplation of the parties that they deemed it unnecessary to express it; (3) implied covenants can only be justified on the grounds of legal necessity; (4) a promise can be implied only where it can be rightfully assumed that it would have been made if attention had been called to it; (5) there can be no implied covenant where the subject is completely covered by the contract. Keeping in mind the above rules, we find nothing in the language employed in either the original lease or the modification, nor in any of the circumstances attending the execution thereof, to support the conclusion that there was an implied covenant requiring defendant to remain in business in the demised premises until the expiration of the term. An examination of the amendatory agreement shows that its terms are clear, definite, and unambigous; that it was skillfully drawn, and executed only after full discussion and mature deliberation. * * *

‘Nor is there anything in the nature of the transaction to justify a finding that the implied covenant was indispensable to effectuate the intention of the parties, nor can it be supported on the grounds of legal necessity. On the contrary, as defendant argues, it would seem that the covenant to pay the minimum rental was inserted in the lease as a substitute for an express covenant requiring the continuous operation of the demised premises; that when the rental reserved in a lease is based upon a percentage of the gross receipts of the business, with a substantial adequate minimum, there is no implied covenant that the lessee will operate its business in the demised premises throughout the term of the lease.’

To the same effect is Foley v. Euless, 214 Cal. 506, 6 P.2d 956.

Sharpe v. Arabian American Oil Co., 111 Cal.App.2d 99, 244 P.2d 83, holds that if the parties have omitted from the agreement something that was so clearly a part of their understanding that the agreement would be unworkable without it, the missing stipulation will be implied as a part of the agreement. But, cautioned the court, 111 Cal.App.2d at page 102, 244 P.2d at page 85: ‘Nothing may be added by way of implication except that which is necessary to carry out the intentions of the parties, as derived from the agreement itself and not merely from the circumstances under which it was made.’

The court in Cousins also cited the case of Jenkins v. Rose's 5, 10 and 25¢ Stores, 213 N.C. 606, 197 S.E. 174, which maintained that ‘Whether the defendant operated a store in the building or whether it operated one successfully was no concern of the plaintiffs unless and until there were sales made on the premises in excess of $48,000.00 during the rental year. If the defendant operated at a loss it must continue to pay the $200.00 per month. * * * ‘it seems that the tenant is under no obligation, in the absence of specific provision therefor, to occupy or use, or continue to use, the leased premises, even though one of the parties, or both, expected and intended that they would be used for the particular purpose to which they seemed to be adapted or constructed.’'

Apart from the question of liability for waste, it seems that the tenant is under no obligation, in the absence of specific provision therefor, to occupy or use, or continue to use, the leased premises, even though one of the parties, or both, expected and intended that they would be used for the particular purpose to which they seemed to be adapted or constructed. Goldberg v. Pearl, 306 Ill. 436, 138 N.E. 141. Moore v. Guardian Trust Co., 173 Mo. 218, 73 S.W. 143, 150.

In McCormick v. Stephany, 57 N.J.Eq. 257, 41 A. 840, 842, the court held, ‘The covenant is to be construed according to its terms, which are clear. They prohibit a different use, but they do not compel a continued use for the purpose named.’ So, also in Henry Rarr's Sons Co. v. Buckley, 159 Wis. 589, 150 N.W. 994, it was found that interruption in the use is not a breach of a covenant for a particular use where the premises are not put to other uses in the interim.

Decided to the contrary because of the waste and disrepair caused by abandonment of the premises was Asling v. McAllister-Fitzgerald Lumber Co., 120 Kan. 455, 244 P. 16, 20, 46 A.L.R. 1127. But the dissent in that case noted ‘If a tenant desires to keep buildings unemployed for the purpose for which they were erected, and to which they are adapted, that is his use of them. That use is a lawful use, and he is under no obligation to employ them in any other manner, in the absence of a covenant to do so inserted in the lease.’

In many respects the factual situation, particularly with reference to the construction of a building, is comparable in Branhill Realty Co., v. Montgomery Ward & Co., 2 Cir., 60 F.2d 922, 923. The court held that ‘The plans and specifications of the proposed building also indicated that the premises the defendant proposed to lease were adapted for retail store purposes. All this goes only to corroborate the admitted intent of the defendant to make such use of the premises. But it did not bind itself so to do.’ The lease there provided for commercial purposes, etc., or any lawful purpose. The court said, 60 F.2d at page 923, it was not obligated to use the premises for a chain store, but ‘Either use would have satisfied its obligation under the proposed lease.’ To the same effect is Grace v. Croninger, 12 Cal.App.2d 603, 55 P.2d 940.

Failure to utilize the premises for all of the uses enumerated in the lease may not be construed to be an abandonment. The primary elements of abandonment are the intention to abandon and the external act by which the intention is carried into effect. Pickens v. Johnson, 107 Cal.App.2d 778, 238 P.2d 40. An abandonment cannot be inferred unless non-use-by the lessee is coupled with clearly shown intent to relinquish all rights in the premises. Swigert v. Stafford, 85 Cal.App.2d 469, 472, 193 P.2d 106. Adoption of one of several permitted uses is not consistent with an intent to relinquish all rights in the premises.

The foregoing line of cases is buttressed by two general rules, both of which lend support to the appellant. The first is that where doubt exists as to the meaning of lease restrictions on the use of property, such provisions are to be resolved in favor of the lessee and against the lessor. Mutual Paper Co. v. Hoague-Sprague Corporation, 297 Mass. 294, 8 N.E.2d 802, 806; Otting v. Gradsky, 294 Ky. 779, 172 S.W.2d 554, 556, 148 A.L.R. 580. The second is that where doubt exists, it must be resolved against the restrictions and in favor of the free exercise of commercial enterprise. 148 A.L.R. at p. 588.

Pursuant to the weight of authority, we conclude that the appellant was permitted to select any one or more of the several stated uses, or it could refrain from any of the uses, but it could not engage in any other or different use not enumerated. Since storage of merchandise, the purpose to which appellant devoted the premises, was described in the lease as an authorized use, appellant did not violate the terms of the lease.

Respondent has seized upon the words ‘with a substantial, adequate minimum’, in Cousins and introduced evidence for the purpose of establishing that the sum of $285 was not substantial or adequate. The trial court found it was not, basing its finding primarily on a basis of return on investment.

There are numerous objective standards which might be applied in ascertaining what is substantial and adequate. Since no expert testimony was offered on this subject, however, the significant element in this instance must be the intent of the parties. It is not the intent merely of the lessor that governs, but the combined intent of the lessor and the lessee. Marlin v. Robinson, 123 Cal.App. 373, 375, 11 P.2d 70.

Since adequacy became an issue, appellant offered in evidence the lease between appellant and respondent's predecessors. This offer was improperly rejected by the court. If not remote in time, prior rental for the same business at the same location would be some indication of present adequacy, the weight to be accorded such testimony being a matter for the trier of fact. The prior lease, running from February 1, 1939, to February 1, 1949, provided for rental at $285 per month with no additional percentage. That this was significant is indicated in the testimony of respondent's witness Jones, who admitted the minimum guarantee figure was obtained from the previous lease. Respondent points out that Jones testified ‘the sum arrived at of a minimum guarantee was a nominal sum to take care of fixed expenses, and that the profit on his investment would be arrived at through a percentage of sales.’

There is nothing implicit in that testimony requiring a conclusion that the guaranteed rental was inadequate or insubstantial. ‘Fixed expenses' may be relatively substantial and in this instance, when they correspond exactly to the entire previous rental at the same location and are within $15 of the subsequent rental for the extended occupancy, they are in fact substantial. Nor is that minimum figure rendered less adequate because it may not include profit. Certainly there can be no assurance of profit to every investor or landlord. Indeed, that landlord who is contractually provided against loss, as the respondent herein, is in a fortunate economic position.

As stated in Brawley v. Crosby, etc., Foundation, Inc., 73 Cal.App.2d 103, 112, 166 P.2d 392, 397: ‘If the amount of the minimum royalties was not adequate, respondents should have so determined in their own minds before signing the contract, but having signed it, they must live up to the agreement. The law does not weigh the quantum of the consideration.’

Masciotra v. Harlow, 105 Cal.App.2d 376, 233 P.2d 586, is another case in point. The court there specifically found, 105 Cal.App.2d 378, 233 P.2d at page 589, no implied covenant exists in percentage lease rentals ‘that lessee would, during the term of the lease, so conduct his business on plaintiff's premses as to make it mutually profitable to both parties'.

It must be concluded that the parties considered the stipulated minimum rent to be in itself substantial, fair and adequate.

Respondent discusses at length the terms of the lease with relation to subletting, and its effect on the parties. There was no subletting here. We fail to see any analogy between merely changing the nature of business operations under the same management, and subletting the premises to an independent tenant. That the parties specifically protected the lessor in the eventuality of subletting does not supply by inference similar provisions under these incomparable circumstances.

In the instant case, there is nothing in the agreement itself that prohibits the lessee from using the premises merely for storing merchandise, nor is there anything specifying any different rental rate if it does so. If the lessor desired to protect himself against this possible change in circumstances, it was his duty to so stipulate in the contract, just as he did in the event of possible abandonment or sublease. Security Trust, etc., Bank v. Claussen, supra.

When a person takes part in a bilateral act, a transaction in which other persons share, he must accept a common standard. He cannot claim to enforce his individual standard to meaning. Wigmore on Evidence, 3d Ed., § 2466. That common standard is the language employed in the instrument reduced to writing. The parties, having dealt on a basis of equality in its negotiation, are bound by its terms.

Sears may have been somewhat shrewed and opportunistic in taking advantage of an omission in the provisions of the lease. But that conduct does not justify a court in rewriting the contract in a suit brought in reliance upon the instrument itself. As stated in Asling 244 P. at page 20, ‘If the lease were procured under material representations which have not been fulfilled, the law provides a remedy, but the remedy is not to manufacture out of whole cloth a covenant, and place it as a patch upon the lease.’ It should be noted that in colloquy with counsel, the learned trial judge suggested alternative remedies, but counsel failed to respond to an offered opportunity to amend his pleadings.

We conclude that under terms of the lease, appellant was not indebted to the respondent.

The judgment is reversed.

MOSK, Justice pro tem.

WHITE, P. J., and DRAPEAU, J., concur.

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