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National General Theatres Inc. v. Bolger

September 27, 1973

NATIONAL GENERAL THEATRES, INC., RESPONDENT,
v.
BOLGER, APPELLANT



Appeal from Circuit Court, Multnomah County. Alan F. Davis, Judge.

Paul R. Duden, Portland, argued the cause for appellant. On the briefs were Tooze, Kerr & Peterson, Portland.

John L. Langslet, Portland, argued the cause for respondent. With him on the brief were Dusenbery, Martin, Bischoff & Templeton, Portland.

O'Connell, Chief Justice, and McAllister, Holman,*fn* Howell and Bryson, Justices.

O'connell

This is an action by plaintiff landlord to recover damages from its tenant for unpaid rent. The case was tried on stipulated facts, and judgment was entered for plaintiff in the amount of $3,020, plus costs and $750 in attorney fees. Defendant appeals.

Defendant Ray Bolger and plaintiff's predecessors in interest, Ahlnew Amusement Company, entered into a lease agreement on March 30, 1954. Defendant operated a retail men's clothing store on the leased premises. The lease provided for a base rental of $6,000 per

year, and for a percentage rental of six percent of defendant's gross receipts each year less the amount of the base rental. The agreement also prohibited subletting of the premises without the written consent of the lessor.

There were several renewals of the lease, the last of which was executed on May 16, 1967, and covered a period from September 1, 1967 through August 31, 1972. This extension called for a base rental of $550 per month for the first year and increments of five dollars for each succeeding year. The six percent clause obtained in the same manner as in the original 1954 lease.

For health and business reasons, defendant closed his store at the end of February, 1969. Defendant was committed to Dammasch State Hospital on April 17, 1969, suffering from a mental illness which, according to the stipulation of the parties, rendered him unable to understand the nature, quality and consequences of business transactions.

Prior to his hospital commitment, defendant informed plaintiff's real estate broker that he wanted to be relieved of his lease. The broker found Todd Imports, Inc., which was willing to sublet the premises only if it could pay a flat monthly rental rather than a base rent plus a percentage rental.

Three days after his commitment to Dammasch State Hospital, defendant signed a sublease agreement letting his store premises to Todd. The sublease provided for a flat monthly rent of $650, the payments to be sent directly to plaintiff. In all other respects the sublease contained the same ...


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