{
  "id": 2478607,
  "name": "Thomas B. Harvey and Harriet H. Biggs, Plaintiffs-Appellants, v. Rolands of Bloomington, Inc., a Corporation, Defendant-Appellee",
  "name_abbreviation": "Harvey v. Rolands of Bloomington, Inc.",
  "decision_date": "1968-05-28",
  "docket_number": "Gen. No. 10,922",
  "first_page": "444",
  "last_page": "451",
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      "cite": "94 Ill. App. 2d 444"
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    "id": 8837,
    "name": "Illinois Appellate Court"
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    "name_long": "Illinois",
    "name": "Ill."
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  "last_updated": "2023-07-14T15:24:30.459350+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "Thomas B. Harvey and Harriet H. Biggs, Plaintiffs-Appellants, v. Rolands of Bloomington, Inc., a Corporation, Defendant-Appellee."
    ],
    "opinions": [
      {
        "text": "SMITH, P. J.\nWe are asked to construe the following:\n\u201c2. Tenant agrees in consideration of said extensions from Landlord, to pay an annual rental for said premises as follows:\n\u201c(a) Beginning September 1, 1960, to September 1, 1961, a minimum rental of $6,000.00 plus the cost of insurance and taxes.\n\u201c(b) Beginning September 1,1961, . . . a gross rental of % of 1% of tenant\u2019s 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 . . . .\u201d\nPlaintiffs, 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)\u2019s 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 \u201cplus\u201d is synonymous with \u201c+\u201d or with some such phrase as \u201cand also,\u201d \u201cover and above,\u201d \u201cinto the bargain,\u201d \u201cbesides,\u201d etc.\nThe dispute involves the interpretation to be given the phrase, \u201cOR $6,000.00 a year, plus the cost of insurance and taxes, whichever computation produces the greater amount . . . .\u201d The landlord reads this to mean that the first alternative (% of sales, less cost, etc.) is to be placed alongside $6,000 and the \u201cgreater amount\u201d 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 \u201cgreater amount\u201d 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 \u201cthe greater amount\u201d does not equal annual rent. We have reduced their respective positions to the following formulae:\nTHE LANDLORD\u2019S\n% of sales less taxes and insurance paid by tenant = X\nOR\n$6,000\nIf X is greater than $6,000, X = annual rental\nIf X is less than $6,000, annual rental is $6,000, in addition, tenant pays taxes and cost of insurance\nTHE TENANT\u2019S\n% of sales less cost of insurance and taxes paid = X\nOR\n$6,000 + cost of insurance and taxes = Y\nIf X is greater than Y, subtract cost of insurance and taxes from X, remainder equals annual rental\nIf Y is greater than X, annual rent is $6,000, in addition tenant pays taxes and cost of insurance\nFor the first year in question (1961-1962) it worked like this:\nTenant\u2019s Computation\n% of sales $9,826.22\nLess cost of insurance and taxes paid \u20142,126.29\nTotal (X) 7,699.93\nOR\nAnnual Rental 6,000.00\nAdd cost of insurance and taxes +2,126.29\nTotal (Y) 8,126.29\nY being greater than X, annual rental is $6,000, in addition tenant pays cost of insurance and taxes.\nAccordingly, tenant paid landlord $6,000 and also paid the cost of insurance and taxes. Landlord says rent was underpaid by $1,699.93 as follows:\nLandlord\u2019s Computation\n% of sales $9,826.22\nLess taxes and insurance paid by tenant \u20142,126.29\nTotal (X) 7,699.93\nOR\n$6,000\nSince X is greater than $6,000, annual rent is $7,699.93.\nBalance due is $1,699.93 ($7,699.93 \u2014 $6,000).\nLikewise, for the next two years (1962-1964) tenant\u2019s Y figure ($6,000 + etc.) was greater than their X figure (% of sales \u2014 etc.) and they paid landlord $6,000 and over and above that paid the insurance costs and taxes.\nFor the landlord, however, X (always the same for both parties) was greater than $6,000, leaving unpaid as rent the difference between $6,000 and X for these two years.\nFor the last year (1964-1965) X was \u201cthe greater amount\u201d for both of them, i. e., X was more than Y (tenant\u2019s) and X was more than $6,000 (landlord\u2019s). Even so, they differ substantially as to the rental amount:\nTenant\u2019s Computation\n% of sales $10,647.28\nLess cost of insurance and taxes paid \u20142,058.46\nTotal (X) 8,588.82\nOR\nAnnual Rental 6,000\nAdd cost of insurance and taxes +2,058.46\nTotal (Y) 8,058.46\nSince X is greater than Y, subtract $2,058.46 (taxes and insurance) from X and annual rent is $6,530.36, as follows:\n$8,588.82\n\u20142,058.46\nAnnual Rent 6,530.36\nLandlord\u2019s Computation\n% of sales $10,647.28\nLess cost of insurance and taxes\npaid by tenant \u20142,058.46\nTotal (X) 8,588.82\nOR\n$6,000.00\nSince X is greater than $6,000, annual rent is $8,588.82.\nThe differential is quite something. Tenant has paid $6,530.36 and contends it has done everything required. On the other hand, the landlord wants $2,058.46 more:\nX Figure $8,588.82\nAmount Paid \u20146,530.36\nUnpaid 2,058.46\nWho is right ?\nAs we know in construing contracts, a literal or strict construction must give way to the purposes intended. As was said in United States Trust Company v. Jones, 414 Ill 265, 111 NE2d 144, 147, \u201cthe terms employed are servants and not masters of an intent, and are to be interpreted so as to subserve, and not to subvert, such intent.\u201d A strict construction which works a result different from that intended should not be adopted. Words can be enlarged or limited by the object or purpose because the real intention of the parties is what controls, not some particular word or phrase. Nor should we search out obscure possibilities in simple words or ascribe a particular meaning to a word that has more than one, if in doing so purpose is distorted. As best we are able, we should project ourselves into the position of those who uttered the words, such words being our sole criterion, assuming no ambiguity.\nWith these rules in mind, we are constrained to the view that the phrase, \u201cthe greater amount\u201d is synonymous with annual rental, and that the word \u201cplus\u201d in the phrase \u201cplus the cost of insurance and taxes,\u201d means \u201cin addition to,\u201d \u201cover and above,\u201d \u201cand also,\u201d or \u201con top of.\u201d It is used adjunctively and not as an invitation to engage in an exercise in addition. It is not synonymous with the plus sign \u2014 Text must be read in context, and \u201cwhichever computation produces the greater amount\u201d is circumscribed by \u201ctenant agrees ... to pay an annual rental for said premises as follows:\u201d (b) is, after all, a s%& paragraph, and it is solely concerned with future rentals \u2014 \u201cbeginning September 1, 1961, . . .\u201d\u2014 and the computations, such as they are, must directly relate to rent, not indirectly. To do otherwise is to wrench language from its moorings. Simply stated, the parties had in mind a minimum rental of $6,000, with an opportunity for the landlord to participate with the tenant if sales waxed fat, and if lean, then there was always the minimum. This is what percentage leases are all about\u2014 and this is a percentage lease. The landlord\u2019s formula is in accord with the reason that brought percentage leases into use, the tenant\u2019s however, produces a distortion\u2014 it does not produce \u201cthe greater amount\u201d of rent. As Mr. Justice Oliver Wendell Holmes said, \u201cWe must think things, not words, or at least we must constantly translate our words to the facts for which they stand, if we are to keep to the real and the true.\u201d\nThe tenant\u2019s formula has an initial attraction \u2014 simply, which is greater X or Y. But they do not stop there. If X is \u201cthe greater amount,\u201d they do not want to call it rent, instead, they want to deduct what they have already deducted, the cost of insurance and taxes. Clearly, no words or phrases support such tack. Furthermore, if we do not equate \u201cthe greater amount\u201d with \u201cannual rent for said premises,\u201d the computations become ends in themselves. This possibility is so foreign to purpose and so obscure if words are to be given their natural meanings, that it must be rejected. \u201cFalstaff\u2019s babbling of green fields has sometimes led meticulous critics to untenable conclusions.\u201d Evans v. Ockerhausen, 100 F2d 695, 702. The same may be said for adding taxes and cost of insurance to the minimum rent in determining their Y amount. There is some inexactitude in the use of the word \u201ccomputation\u201d because $6,000 standing alone is not a computation. Yet it, too, must be read in context, as after all, there is a computation in the landlord\u2019s formu\u00eda \u2014 the determination of X, and its comparison with $6,000 involves a computation of sorts.\nAccordingly, the order appealed from is reversed and remanded with directions to enter judgment for the plaintiffs and against the defendant for the appropriate amounts found to be due for the years in question in a manner not inconsistent with this opinion.\nReversed and remanded with directions.\nTRAPP and CRAVEN, JJ., concur.",
        "type": "majority",
        "author": "SMITH, P. J."
      }
    ],
    "attorneys": [
      "Livingston, Barger, Brandt, Slater & Schroeder, of Bloomington (Whedon Slater and William C. Wetzel, of counsel), for appellants.",
      "Campbell, Markowitz, Lawrence & Lenz, of Blooming-ton (William B. Lawrence, of counsel), for appellee."
    ],
    "corrections": "",
    "head_matter": "Thomas B. Harvey and Harriet H. Biggs, Plaintiffs-Appellants, v. Rolands of Bloomington, Inc., a Corporation, Defendant-Appellee.\nGen. No. 10,922.\nFourth District.\nMay 28, 1968.\nRehearing denied June 24, 1968.\nLivingston, Barger, Brandt, Slater & Schroeder, of Bloomington (Whedon Slater and William C. Wetzel, of counsel), for appellants.\nCampbell, Markowitz, Lawrence & Lenz, of Blooming-ton (William B. Lawrence, of counsel), for appellee."
  },
  "file_name": "0444-01",
  "first_page_order": 450,
  "last_page_order": 457
}