dissenting: In my opinion the “Build and Lease Agreement” should be construed to require the payment of rents based on a percentage of gross sales of the lessee’s supermarket, including the portion of baked goods sold or transferred to affiliated stores of the sub-lessee.
In construing the agreement in question the entire instrument must be interpreted as a whole from its four corners. When this is done the controversy can be resolved by determining the intention of the parties without resort to extrinsic evidence.
It seems to me the court has given insufficient consideration and weight to the use clause in the agreement. It provides that the building and surrounding area were leased “for operation of a retail food supermarket.” (Emphasis added).
On the record here presented it must be conceded the sale of that portion of the bakery products here in question was sold at wholesale to affiliated stores of the sub-lessee. Whether it be denominated a “sale” or “transfer” as stated in the court’s opinion is immaterial.
The foregoing must be reconciled with the facts giving rise to the controversy: (1) The bakery operation is one in which 2,214 square feet of floor space was provided by the lessor for a bakery in the “Build and Lease Agreement”; (2) The sub-lessee conducts baking operations for a period of twenty-four (24) hours per day, employing numerous persons, whose services together with raw eggs, milk, flour, sugar and other products are assembled, mixed and baked into finished bakery products “and packaged for ultimate sale at retail” (Emphasis added) (quote taken from the Affidavit of John W. Dibble); and (3) None of the bakery products are “transferred” in the original form in which they entered Dibble’s Fairlawn Store.
The term “gross sales” in the lease is defined to cover sales of merchandise, including any service by employees of the lessee and *469“shall include all sales by every portion and department thereof, . . .” (Emphasis added).
Based on the foregoing an interpretation of the entire “Build and Lease Agreement” indicates the parties did not contemplate a wholesale operation on the premises for which no rents were payable to the lessor. The operation contemplated by the parties was clearly stated in the first section of the written agreement to be a retail food supermarket.
On the foregoing interpretation of the agreement between the parties rent was payable based on a percentage of gross sales of the lessee’s supermarket, including the portion of baked goods sold to affiliated stores of the sub-lessee at a wholesale price.
It is respectfully submitted the judgment of the lower court should be reversed.
Fatzeb, C. J., joins in the foregoing dissent.