Bettelheim

Plaintiff appeals from a judgment in favor of defendant, in an action to recover, under the terms of a lease, penalty rentals for holding over.

Questions Presented

Sufficiency of the evidence to support findings as to £1) an executed oral agreement, (2) waiver and estoppel.

Facts

The facts are practically undisputed. It is the inferences and conclusions therefrom that are disputed. The following are the facts: Defendant owns a chain of stores. For many years, under leases from various owners, it occupied the premises in question. In December, 1946, plaintiff then holding a master lease of the premises, entered into a three-year sublease with defendant, the term running from May 15, 1947, to May 14, 1950. In May, 1947, plaintiff obtained from the owner of the premises a new 10-year lease. The sublease required defendant to pay a rental of 2 per cent of the gross receipts, with a minimum monthly rental of $500. During the three-year period the rental was paid each month in two checks,' one for $500 and an additional one for the balance necessary to equal 2 per cent of the previous monthly gross. Attached to these additional checks was a statement showing the previous month’s…