Rathbun v. Cato Corp., 93 S.W.3d 771 (2002)

Citation: Rathbun v. Cato Corp., 93 S.W.3d 771 (2002)
Parent Document: Rathbun v. Cato Corp., 93 S.W.3d 771 (2002)
Jurisdiction: Missouri (state)
Effective Date: 2002-11-21
Original Source: https://www.courtlistener.com/opinion/1890960/rathbun-v-cato-corp/ ↗

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*779The issue here revolves around the words “similar type and size business” found in the Inducement provision of the Lease. The phrase was used to refer to a business obtained to replace one of the major anchor tenants, in this case, Consumers. Lessor complains that the trial court construed that term to mean an identical business to Consumers. Lessor points out that “similar type” is not defined in the Lease and, therefore, it should be given its ordinary and usual meaning. Uptergrove v. Housing Authority of City of Lawson, 935 S.W.2d 649, 655 (Mo.App. W.D.1996). That meaning, according to Lessor, is found in WebsteR’s UniveRsal Collegiate DictionaRY (1997), where “similar” is defined as “having a likeness or resemblance ... in a general way.” Lessor argues on the basis of this definition that “similar” clearly is something less than “identical,” and that Sutherland’s is similar to Consumers in that (1) they are both retail establishments; (2) they occupy the same space in the shopping center; (3) they both carry product lines that include flowers, plants, cleaning agents, and hardware; (4) they both advertise and bring people to the shopping center; and (5) they are similar in type because they are large retail sellers of consumer goods. Moreover, Lessor argues, since “similar” has no definite meaning in the dictionary and requires some construction external to the contract, and the words “similar type business” requires even more interpretation, the phrase is “patently ambiguous.”

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