J. E. Stitt & Henry S. Miller Co. v. Royal Park Fashions

Appellants, J. E. Stitt and Henry S. Miller Company, appeal from an order granting appellees, Royal Park Fashions, Inc., and Sears, Roebuck & Company, motion for summary judgment and denying appellants motion for summary judgment. Appellants seek real estate commissions as provided in a sublease agreement entered into by appellants, appellees, and Trinity Company, the owner of the leased premises. They appeal on the ground that the trial court erred as a matter of law in denying their motion for summary judgment because the phrase "as collected from tenant" in the sublease merely shows time of payment and is not a condition precedent to payment. Also, they argue alternatively that the language in the lease is ambiguous, and consequently a question of fact precludes the trial courts granting a motion for summary judgment for either party. We agree with appellants contention that the sublease provides a time of payment rather than a condition precedent, and accordingly we reverse the judgment and remand the cause with instructions.