Douglass v. Stachecki

537 P.2d 1044, 13 Wash. App. 922, 1975 Wash. App. LEXIS 1441
CourtCourt of Appeals of Washington
DecidedJuly 16, 1975
DocketNo. 1122-3
StatusPublished
Cited by1 cases

This text of 537 P.2d 1044 (Douglass v. Stachecki) is published on Counsel Stack Legal Research, covering Court of Appeals of Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Douglass v. Stachecki, 537 P.2d 1044, 13 Wash. App. 922, 1975 Wash. App. LEXIS 1441 (Wash. Ct. App. 1975).

Opinion

Green, J.

Plaintiff-lessor commenced this action seeking cancellation of a lease agreement or, in the alternative, an order permanently enjoining the sale of certain items by the defendant-lessee. After a trial to the court, an order was entered permanently enjoining the defendant from selling some 14 types of food items for the balance of the lease term ending May 31, 1977;1 and awarding costs and attorney’s fees to plaintiff. Defendant appeals.

The plaintiff is a building contractor who has been in the business of constructing and leasing buildings for approximately 16 years. The defendant has been in the meat business for some 25 years. In June 1972, the defendant leased a corner area in a small four-store shopping center owned by [923]*923the plaintiff. The lease contains the following business purpose clause:

The premises are to be used for the purpose of conducting therein [a] Meat shop and for no other business or purpose, without the written consent of Lessor.

In August 1972, defendant opened his shop under the name “Angus Meats and Delicatessen” and since sold meats and allegedly meat-related or complementary food items.2

On October 17, 1972, plaintiff informed defendant by letter that its sale of bread and milk was prohibited by the terms of their lease and jeopardized plaintiff’s lease with the owners of a Seven-Eleven Store which occupies the opposite corner of the shopping center. The Seven-Eleven lease prohibits plaintiff from leasing another portion of the building to a competing business. Plaintiff requested that defendant discontinue the sale of bread and milk.

On October 25, 1972, defendant’s attorney notified plaintiff by letter that defendant would continue to sell milk and bread, stating:

It is the general feeling of those that I have discussed this matter with that in the common trade of meat there are certain complimentary [sic] items that as a matter of custom and useage [sic] have been sold in connection [924]*924with and to complement the sale of meats in the meat trade. . . .
. . . I have discussed this with other butchers and people familiar with the meat business and it is their feeling that the term “meat shop” would include, and does by custom include such items as bread, milk, cheese, etc.

On November 6, 1972, plaintiff’s attorney informed the defendant that legal action would be taken unless the defendant immediately refrained from selling bread and milk in competition with the Seven-Eleven Store. Thereafter, this action was commenced.

At trial defendant introduced expert testimony tending to establish by “custom and usage” that the sale of bread and milk and other complementary items is within the scope of the term “meat shop.” Plaintiff objected to the introduction of such testimony, arguing that the parol evidence rule bars evidence of custom and usage to explain the term “meat shop” which is unambiguous and clearly restricts the purpose as well as the type of business to be conducted under the lease. The trial court allowed such testimony but subsequently refused to consider it in rendering its decision, stating:

[I]n order to admit parol evidence of a peculiar meaning within a given industry of a certain term employed by parties to a contract, it is necessary to show that the parties had knowledge of that meaning, or that a party, as a member of the trade or business group to which the contract relates, would be reasonably charged with such knowledge. In the case here, I question that such knowledge could be imputed to the plaintiff, and I question that the term, “meat shop” is inexplicable without the use of such evidence.

The propriety of the trial court’s refusal to consider evidence of custom and usage to explain the meaning of the term “meat shop” presents the overriding issue on appeal.

The defendant’s basic contention is that the term “meat shop” is ambiguous because it is capable of conveying a variety of meanings; therefore, parol evidence should have [925]*925been considered to explain the ambiguity. We agree. For example, Webster’s Third New International Dictionary (1969) defines “meat” primarily as “something eaten by man or beast for nourishment: Food.” The word “meat” has been given a legal definition in its broadest sense encompassing all provisions or foods fit for human consumption. See Gardner v. State, 183 Ind. 101, 108 N.E. 230 (1915); 26A Words and Phrases, Meat, 575 (1953). The term in its narrowest sense has been limited to the flesh of cattle, swine, sheep or goats. See State v. Nugent, 243 N.C. 100, 89 S.E.2d 781, 784 (1955); Wilson v. State, 164 Tex. Crim. 233, 297 S.W.2d 830, 831 (1956). In view of the foregoing, we find the term “meat shop” is subject to a variety of interpretations and therefore ambiguous.

It is clear that where words in a contract are ambiguous, parol evidence is admissible to explain their meaning. Stender v. Twin City Foods, Inc., 82 Wn.2d 250, 255-56, 510 P.2d 221 (1973); Perkins v. Brown, 179 Wash. 597, 38 P.2d 253, 101 A.L.R. 275 (1934); Florence Fish Co. v. Everett Packing Co., 111 Wash. 1, 188 P. 792 (1920); Schultz v. Simmons Fur Co., 46 Wash. 555, 90 P. 917 (1907); Williams v. Ninemire, 23 Wash. 393, 63 P. 534 (1900); Sons of Norway v. Boomer, 10 Wn. App. 618, 622, 519 P.2d 28 (1974). Very early, our court in Williams v. Ninemire, supra, at page 405, said:

[W] here a contract . . . is ambiguous . . . proof of custom is admissible, . . . Proof of custom is received in such cases upon the assumption that, as to those matters not covered by express stipulations in the agreement, the parties are presumed to have made their contract with reference to the established custom and usage of that place; and these the law will incorporate into the contract, in order to explain or complete it.

Thus, the trial court erred when it declined to consider parol evidence of custom and usage to explain the intended meaning of the term “meat shop.”

Plaintiff argues that because defendant failed to show that the parties had knowledge of the customary use or [926]*926meaning of the term “meat shop” and contracted with reference to it, the court correctly refused to consider defendant’s evidence of custom and usage. We disagree. Prerequisite to the admission of such evidence is a determination that the parties had actual or presumed knowledge of the customary meaning of the term as used in the trade and contracted with reference to it. Washington Brick, Lime & Sewer Pipe Co. v. Anderson, 176 Wash. 416, 421, 29 P.2d 690 (1934); Bowman v. First Nat’l Bank, 9 Wash. 614, 618, 38 P. 211 (1894); Codd v. Westchester Fire Ins. Co., 14 Wn.2d 600, 610,

Related

S. L. Rowland Construction Co. v. Beall Pipe
540 P.2d 912 (Court of Appeals of Washington, 1975)

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Bluebook (online)
537 P.2d 1044, 13 Wash. App. 922, 1975 Wash. App. LEXIS 1441, Counsel Stack Legal Research, https://law.counselstack.com/opinion/douglass-v-stachecki-washctapp-1975.