88 P. 292 | Cal. Ct. App. | 1906
Appeal from a judgment for the defendant, an order denying the plaintiff's motion for a new trial, and an order denying the plaintiff's motion to vacate the judgment and to enter a judgment in its favor. The suit was brought for breach of an agreement of the defendant with plaintiff's assignor, of date October 1, 1903, for the lease of a lot of land in the city of Los Angeles near the northeast corner of Third and Olive streets, with a hotel building thereon to be constructed, according to the plans and specifications specified, under the following provision of the contract: "Said first party agrees to complete said building and have it ready for occupancy by the first day of February, 1904, unless he shall be prevented by strikes, accidents, or other causes beyond his control; and if for any reason said first party shall not have completed said hotel by the first day of February, 1904, he agrees to complete it and deliver possession thereof as soon thereafter as possible." *381
The agreement sued on is in the form of a lease, delivered in escrow to the Title Insurance and Trust Company, for delivery to the plaintiff within thirty days after the completion of the hotel, upon the execution of a mortgage specified in the escrow agreement. The hotel building provided for, according to the specifications, would be about sixty-five feet in height on Olive street and one hundred and nineteen feet at the rear end of the lot, with an addition thereto of a cafe ten feet in height on the top of the house and a tower twenty-eight feet square by seventy-three feet in height above the roof of the cafe. The construction of the building by the defendant was prevented by an ordinance of the city of Los Angeles passed by the city council October 8, 1903, to the effect following:
"Section 1. That it shall be unlawful for any person to erect, or to cause to be erected, any frame building in the city of Los Angeles, the height of which, at any point, exclusive of the flag-pole, shall be more than 65 feet above the natural surface of the ground."
This ordinance was subsequently modified by another ordinance of date October 26, 1903; but this also, in its effect, prohibited the erection of the building contemplated. Assuming these ordinances to be valid, the defendant was excused for nonperformance of the contract, not only "by the operation of law" (Civ. Code, sec.
"1. It applied to all kinds of frame buildings, whether churches, ice-houses, elevators, water towers, oil derricks or windmills, as well as to private residences, rooming-houses and hotels.
"2. It applied to any building of any kind erected a mile from any other structure, with the same force and effect as if it were in the thickly settled portions of the city.
"3. It applied to a building erected on the side of a hill, as the hotel mentioned in the lease was to be, and did not permit the front of the hotel to extend even one story above the sidewalk on Olive Street."
These objections, it may be observed, may be summed up in the one general objection, that the ordinance, under certain special circumstances, would be unreasonable. But, "there *382
is nothing pleaded dehors the ordinance by virtue of which petitioner claims that the same is unreasonable, oppressive or void as applying to his property distinguished from other property within" the city; and in the absence of such a showing, we are not in a position to review the action of the council. (In re Newell,
We are of the opinion, therefore, that the judgment and orders appealed from must be affirmed; and it is so ordered.
Gray, P. J., and Allen, J., concurred.
