Aрpeal from judgment in favor of plaintiff for the sum of $300, rental for certain premises leased by plaintiff tо defendants by a written lease.
The lease was executed in September, 1906, and the defendants entered into possession of the demised premises, and have ever since continued in possession, but refuse to pay the agreed rental falling due ■ March 12, 1908, solely upon the ground that the building which they leased аnd the possession of which they have enjoyed, and apparently still retain, was erected in violаtion of the provision of the ordinance establishing fire limits and regulating the construction of buildings.
It is contended by appellant that because the erection of the building was a violation of such ordinance punishable by a fine, the consideration for the contract of lease between plaintiff and defendants was illegal, and the contract in consequence void.
That a contract founded upоn an illegal consideration, or having for its purpose a violation of the law, is void, and may not be еnforced, cannot be denied. Such are the cases cited by appellant. But to the proрosition that the leasing and giving possession of a building, originally illegally constructed, for an agreed rentаl involves any violation of law, we cannot agree. The ordinance does not in terms prohibit the leasing of such a building, and the lease in this case was for no illegal purpose.
This case is analogous to Sharp v. Taylor, 41 Eng. Reprint, 1153, 2 Phil. Ch. 801. The action was of an accounting between joint owners of an American vessel. The owners were British subjects, and, in viоlation of an act of parliament, had caused the vessel to be registered in the name of an American owner in order that she could be used in commerce between American and British ports. The lord chancellor said: “The next point is that plaintiff’s claim is in violation of the English ship registry acts. . . . But the answer to the objection appears to me this—that the plaintiff does not ask to enforce any agreement adverse to the provision of the act of parliament. He is not seeking compеnsation and payment for any illegal voyage; that matter was disposed of when Taylor receivеd the money; and the plaintiff is now only seeking for payment of his share of *110 realized profits. The violatiоn of the law suggested was not any fraud upon the revenue, or omission to pay what might be due, but, at most, an еvasion of a parliamentary provision supposed to be beneficial to the ship owners of this country, an evil, if any, which must remain the same whether the freight be divided between Sharp and Taylor, according to their shares, or remain altogether in the hands of Taylor.”
So in the case at bar the violatiоn of the ordinance had been accomplished. The evil had been done before the leаse was executed. It was perhaps within the power of the municipality to cause the building to be rеmoved. But until this was done it remained the property of plaintiff, and defendants certainly had no right to take and enjoy the possession thereof under a lease and not be bound by the terms thereof. A different question would be presented if the action was by the builder to recover for having constructed the building; but to permit the defendants in this case to take 'and enjoy the possession of plaintiff’s building without paying therefor as they agreed would be to encourage the grossest breach of fair dealing in the. business world.
(McDonald
v.
Lund,
“Although there may be some illegal features indirectly connected with a transaction involved in a suit, yet the plaintiff may recover if his cause. of action is othеrwise' legitimate, and he can make out his case without calling to his aid the illegal agreement. The tеst of whether the demand can be enforced at law is whether the plaintiff requires the aid of the illegal contract to establish his ease.”
(Minnesota Lumber Co.
v.
Whitebreast Coal Co.,
*111 The contract relied upon by the plaintiff in this case was entirely independent of, and had no connection with, the violation of the ordinance involved in the construction of the building. It is a matter of the history of San Francisco that after the great fire of April, 1906, by tacit consent of the public authorities property owners were allowed to construct buildings within the fife limits without regard to the fire ordinance. It was the only practicable method of providing facilities whereby thоusands of citizens might resume useful and necessary business and callings. These defendants having availed themselves of one of such buildings to conduct their legitimate business, it would be a perversion of justice for a cоurt of law to sanction their evasion of the payment of the agreed rent. We do not think the law requires it.
The judgment is affirmed.
Cooper, P. J., and Kerrigan, J., concurred.
A petition for a rehearing of this cause was denied by the district court of appeal on April 28, 1910, and a petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on May 26, 1910.