98 Wash. 12 | Wash. | 1917
Action upon two leases to recover rent claimed to be due. Prior to the last day of December, 1915, the
It will thus be seen that it is necessary for us to determine under which rule the case falls, whether the Hayton or the Stratford case should control, or whether this case differs from each of the cited cases and falls within a rule of its own. The Hayton case construed a general lease of premises containing this clause: “The second party may during the life of this lease carry on and conduct a retail saloon business in the building.” We held that this was not a restrictive but a permissive use, and that, under the lease, the tenant could use the premises for any lawful purpose, the
It is apparent from a reading of these leases that the parties had one and one purpose only in mind, that the premises were let for saloon purposes and were to be occupied as a saloon. The covenants of the lease, when read as a whole, are clearly indicative of this purpose. The parties had no other use in mind and covenanted with this use and no other in contemplation. Otherwise language means nothing. . This case is clearly distinguishable from those cases holding that the simple expression in the lease of the purpose for which the premises are to be used or may be used is not a restriction or
In Sullivan v. Monahan, 123 Ill. App. 467, the lease in question recited the use of the premises: “For the purpose of conducting a, saloon,” the language of these leases. Such a
There is another applicable rule controlling here, and that is, where the performance of a contract becomes unlawful by reason of a change in the law, performance cannot be enforced. Cowley v. Northern Pac. R. Co., 68 Wash. 558, 123 Pac. 998, 41 L. R. A. (N. S.) 559; Cordes v. Miller, 39 Mich. 581, 33 Am. Rep. 430; American Mercantile Exchange v. Blunt, 102 Me. 128, 66 Atl. 212, 120 Am. St. 463, 10 L. R. A. (N. S.) 414. The application of this rule is, in part at least, the basis of the opinions in Greil Bros. Co. v. Mabson, supra, and Houston lee & Brewing Co. v. Keenan, supra. It is also referred to as of controlling influence in the Stratford case, under the provisions of section 5 of initiative measure No. 3 (Rem. Code, § 6262-5), making it unlawful for any person owning or occupying any building to permit the sale of intoxicating liquors therein subsequent to January 1, 1916, except as in the act provided. This rule is as controlling here as in the Stratford case. The rule grows out of the change in the law making that which was lawful when contracted unlawful when performance is demanded.
These views being determinative of the main question, no other reference need be made to that part of the decree sought to be reviewed by the main appeal.
The judgment is reversed on the cross-appeal and remanded with instructions to dismiss the complaint and enter'
Ellis, C. J., Webster, Main, and Chadwick, JJ., concur.