This section contains the nature of the case and procedural background.

D approached Stroup (P) to lease space for a store to sell 'a variety of items,' including magazines, 'for adults only.' P denies any such conversation. P's son testified that D called him by telephone in response to a newspaper advertisement for lease of the premises, that he asked D what his business was and was told that D intended to conduct 'a variety type operation' and to sell watches, wallets, chains, trinkets, and a few books and novelties, but did not say that he intended to operate an 'adult bookstore' or to sell pornographic material. The lease provided, among other things, that the premises were to be used 'for the sale of gifts, novelties, etc.' The lease was dated March 25, 1973. On April 6, 1973, the complaints started to roll in first with current tenants and then from the community at large. Four days later, P's attorney wrote a letter to D charging him with violating the terms of the lease and demanding that he vacate the premises immediately. P did not tender the return of the first and last months' rent, as previously paid by D, claiming that she was entitled to that money. The trial court rescinded the lease. D appealed.

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