Security Trust & Savings Bank v. Claussen

In this action plaintiff sought to recover rent of $150 per month, alleged to be due for the months of April to October, 1918, inclusive, under the terms of a written lease made by its assignor to defendant herein.

The court found that plaintiff was entitled to forty dollars per month for the period in question, and gave judgment accordingly, from which plaintiff appeals.

The lease, the execution, of which defendant admits, provided that the demised premises, situated in the city of Los Angeles, were to be “used for the purpose of conducting and carrying on the business pertaining to a general retail liquor establishment,” for a period of five years from February 7,1916. Among other provisions contained in the lease was a covenant on the part of the lessor “that should the city of Los Angeles be voted dry and all retail liquor establishments be abolished, and should the within premises thereby become worth less rent per month than the amount above stated [$150 per month], that she will grant such reduction on said rent as she may deem proper at that time.” In his answer defendant, admitting that no payments had been made on account of the rent accruing for said months under the terms of the lease, denied that any sum whatsoever was due thereon, and as an affirmative defense alleged the adoption of an ordinance by the city of Los Angeles, which went into effect April 1, 1918, the provisions of which made it unlawful to use the demised premises for the purpose of conducting and carrying on the business pertaining to a general retail liquor establishment. He did not, however, allege that by reason of the provisions of such ordinance the premises had become worth less per month than the amount specified in the lease. Without objection, defendant introduced in evidence an ordinance entitled, “An ordinance prohibiting saloons; and prohibiting the sale of distilled aleo

Upon this evidence the court found that by reason of the passage of said ordinance it became impossible for defendant to use the premises for the purpose of conducting the business pertaining to a general retail liquor establishment, and that the reasonable rental value of the premises for the months of April to October, 1918, inclusive, was the sum of forty dollars per month.

[1] While the lease provided that the premises were to be “used for the purpose of conducting and carrying on the business pertaining to a general retail liquor establishment,” such provision as to use is permissive rather than restrictive. Defendant was not limited in the use thereof to conducting a liquor business, but might carry on any lawful business therein (Hyatt v. Grand Rapids Brewing Co., 168 Mich. 360 , [ 134 N. W. 22 ]; Lawrence v. White, 131 Ga. 840 , [15 Ann. Cas. 1097, 9 L. R. A. (N. S.) 966 , 63 S. E. 631 ]; McLarren v. Spalding, 2 Cal. 510 ), for which the premises might have been of equal or greater value. [2] The fact that the ordinance rendered it impossible for the tenant to conduct a liquor 'business, since he was not restricted in the use of the premises for other kinds of business, did not constitute an eviction.

[3] If defendant desired to protect himself against a change of the law, the operation of which would prevent him from conducting the liquor business, then it was his duty to so stipulate in the contract. It is apparent the parties so understood the law with respect to the provision as to

The judgment is reversed.

Conrey, P. J., and James, J., concurred.