Mason v. Ennes

California Court of Appeal Jul 17, 1959 No. Civ. 18506Published

Before: O'Donnell

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Holding. The trial court committed reversible error by failing to make a finding on the defendant's affirmative defense of waiver (or estoppel), which was a material issue raised by the pleadings.

Issues

Whether the lease's description of the building to be constructed was sufficiently definite to be enforceable.
Whether the lease provision created a contractual obligation to build or merely a privilege.
Whether the trial court erred in failing to make a specific finding on the defendant's affirmative defense of waiver.

Disposition. reversed

Quotations verified verbatim against the opinion

“We are satisfied that the description contained in the lease of the proposed building was sufficiently definite to form the predicate for an action for damages for breach of the covenant to build.”

“It is firmly established that it is essential that findings be made on every material issue raised by the pleadings, including issues raised upon affirmative defenses in the answer, and that a failure so to do constitutes reversible error.”

O’DONNELL, J. pro tem.

Plaintiff, as lessor, and defendant, as lessee, executed a written lease which contained the following provisions: “Lessee is hereby authorized to build approximately 30 ft. x 70 ft. upon the demised premises for the use of his business and to also construct such other improvements thereon as may be necessary or convenient for him in conducting said business. With reference to the 30 ft. x 70 ft. building to be so erected, Lessee does hereby covenant and agree to so construct the same, work thereon to commence within a reasonable time after the execution of this lease. All material and labor necessary therefor shall be at

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the expense of Lessee except and provided, however, Lessor does hereby agree to furnish all concrete material necessary for the flooring and foundation of said building. The building shall be of sheet iron construction and all work shall be performed in a good workmanlike manner and the construction shall be in accordance with and comply with the requirements of the Building Code of Santa Clara County.

“Upon the termination of this lease the building so erected shall be and become the property of Lessor.”

Defendant was engaged in the trucking business.

Following execution of the lease a cement foundation for the building, having dimensions of 32 feet by 60 feet, was laid. Plaintiff paid the cost of the foundation. Following the laying of the foundation, defendant constructed a building thereon. Bather than being of sheet iron, as called for by the lease, the building had a roof of sheet aluminum, three of the walls were made of plyboard and the fourth side of the building consisted of an old trailer coach which supported one end of the roof. The building failed to comply with the building code of Santa Clara County in a number of particulars.

Plaintiff instituted this action for damages for defendant’s failure to construct a building of the type described in the lease. The cause was tried by the court, sitting without a jury, and plaintiff was awarded damages in the sum of $3,500. Defendant appeals from that judgment.

Defendant’s first contention is that the covenant of the lease for the construction of a building is unenforceable because the description of the kind of building to be constructed is indefinite and uncertain. The contention is without merit. In an action for damages, less certainty in the terms of the contract is required than in an action for specific performance.

Mason v. Ennes

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