131 P. 130 | Cal. | 1913
This is an action commenced April 4, 1910, to obtain judgment for three hundred and sixty dollars rent alleged to be due under the terms of a lease for the months of January, February, March, and April, 1910. The case was submitted to the trial court for decision upon an agreed statement of facts. Plaintiff had judgment as prayed and this is an appeal by defendant from such judgment.
The material facts are as follows: On May 17, 1906, plaintiff was the owner of a lot of land forty by sixty feet fronting on Oregon Street near Davis Street in San Francisco. This lot was within the territory in which the erection of wooden *174 buildings or structures was then prohibited by ordinance enacted prior to April 18, 1906, — in other words, within what is generally styled "the fire limits," and has ever since been within said fire limits. On May 17, 1906, the parties to this action entered into a written agreement of lease, by which plaintiff let to defendant that certain one story frame and corrugated iron building "to be constructed" on said lot, "and to be erected as soon as possible," for the term of two years from June 1, 1906, to June 1, 1908, for eighty dollars per month, payable monthly in advance. The plaintiff expressly agreed therein "to use every effort to have said premises completed as near to June 1, 1906, as possible." The privilege was thereby given to defendant "to renew this lease for a period of three years form June 1, 1908," at eighty-five dollars monthly rental for the first year, ninety dollars for the second year, and ninety-five dollars for the third year, provided that notice of the intention to exercise the privilege be given the lessor in writing ninety days prior to June 1, 1908. In conformity with the terms of the lease, plaintiff constructed the building on the lot, and defendant took possession under the lease, and paid the stipulated rent for the first two years. On February 26, 1908, defendant gave plaintiff notice in writing of its intention to renew the lease for three years from June 1, 1908, at the rental specified in the so-called renewal clause. It continued in possession until the latter part of December, 1909, paying the stipulated rent to December 31, 1909. Prior to December 31, 1909, defendant tendered the keys and possession of the premises to plaintiff, but plaintiff refused to accept the same. Defendant vacated the building and has not been in the occupancy of the premises at any time since December 31, 1909. The premises were vacant to the time of the commencement of the action.
At the time of the execution of the lease, ordinances in force made it unlawful to erect or construct on said lot such a building as was provided for in said lease and in fact constructed. Among the things admitted by the stipulation of facts is that "the consideration for said lease was the erection upon said lot of land of the said wood frame and corrugated iron building." It is clear, of course, that such erection was at least a most material part of the consideration. At no time since *175 the execution of said lease has there been any ordinance in terms purporting to authorize the erection within said limits of such building as was agreed to be constructed on said lot and as was actually constructed thereon.
In the face of the great necessity for temporary buildings in San Francisco immediately following the conflagration of April 18, 19, and 20, 1906, the municipal authorities of the city and county unofficially announced that the construction of temporary wooden frame buildings within said fire limits would be permitted until July 1, 1906, but that all said buildings would be subject to removal at the pleasure of the authorities. On January 6, 1908, an ordinance was adopted providing for the removal not later than May 1, 1910, of all buildings erected "in violation of and contrary to the laws and ordinances of said city and county of San Francisco," and directing notice thereof to be served on all owners. On April 11, 1910, an ordinance was adopted providing for said removal not later than May 1, 1911. Defendant occupied the building in question from June 1, 1906, to the latter part of December, 1909, and was never interfered with by the authorities of the city in the use and enjoyment thereof.
The charter of the city and county of San Francisco authorizes the board of supervisors to fix the limits within which wooden buildings or structures shall not be erected or maintained, and provides that "such limits when once established shall not be changed except by extension." (Charter, chap. II, sec. 5.) So that it would seem that the supervisors would have had no authority after the fire, even by ordinance, to permit the erection of any wooden building within the limits previously defined as the fire limits, the charter provision limiting their powers in this behalf. But they did not even purport to so do by ordinance, which even if there were no charter provisions would be essential to any change in existing ordinances on the subject. All that there was in this case in effect was the unofficial announcement of the municipal authorities that they would regard the law on the subject suspended for the time being and would not attempt to enforce it, which was followed by the actual failure on the part of such authorities to enforce the same. The good faith both of the authorities and those erecting wooden buildings under the assurance thus given is not to be questioned in the slightest *176
degree. It may freely be conceded that the emergency was such as to morally justify the authorities and those acting upon their assurances in doing as they did. But of course the law could not be changed in any such way. The ordinances on the subject continued in force unaffected by the unofficial announcement in the slightest degree, with the result that the construction of this building on this lot, which was expressly provided for in the lease, was "contrary to an express provision of law," and therefore "not lawful" (Civ. Code, sec.
It necessarily follows that the contract of lease was founded upon an unlawful consideration, and that the entire contract was therefore void and unenforceable. (Civ. Code, secs. 1607, 1608;Berka v. Woodward,
It is claimed that even if the original lease was void and unenforceable for the reasons stated, plaintiff is not required to rely upon the same for a recovery in this case, reliance being placed upon the rule that the test whether a demand connected with an illegal transaction is capable of being enforced at law is whether the plaintiff requires the aid of the illegal transaction to establish his case. Admittedly if he does so require the aid of the unlawful transaction, he cannot enforce his claim. (Berka v. Woodward,
We find nothing else in the briefs of counsel that requires discussion here. We are satisfied that the district court of appeal was correct in its conclusion that plaintiff has no right of recovery in view of the stipulated facts. In view of the circumstances appearing, the contract upon which recovery is sought was founded upon an unlawful consideration in that the construction of the building provided for therein was contrary to an express provision of the law. The agreement under the circumstances was one of a kind sometimes styled "a gentleman's agreement," one which the parties thereto are considered in honor bound to abide by, but which the courts cannot enforce, on account of considerations of public policy. And this is so, although, as in this case, the undertaking of the plaintiff was in no way malum in se or contrary to good *179 morals, except in so far as the mere violation of any law is contrary to good morals.
The district court of appeal clearly showed the distinction between its decision in this case and its decision in WaymanInvestment Co. v. Wessinger et al.,
The judgment is reversed.
Shaw, J., Sloss, J., Melvin, J., and Henshaw, J., concurred.