Etchart v. Pyles

MUSSELL, J.

Defendant appeals from a judgment requiring him to make application to the California State Board of Equalization for the transfer to plaintiff of an on-sale liquor license. On December 28, 1943, plaintiff leased a place of business known as the “Tivoli Café,” near Bakersfield, to defendant for a period of three years at a monthly rental of $75. The lease, which was in writing, provided, among other things, that the liquor license then held by the lessor should be transferred to the defendant; that upon the expiration of the lease, or any sooner “determination” thereof, defendant would transfer said liquor license back to lessor or her order and that during the term of the lease the license should be transferred to no other person. Plaintiff presented an application to the Board of Equalization for the transfer of the license to the defendant and the board caused it to be transferred to him. Defendant then took possession of the café and operated it until July, 1949, when he abandoned the premises.

At the time of the transfer, defendant gave plaintiff a check for $325 to guarantee that “he would renew the license before it was too late.” The license renewal fee of $325 was procured by defendant and plaintiff returned the check to him. No cash consideration was paid by defendant for the transfer

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of the license in question. After defendant abandoned the premises in 1949 he refused to make application for the transfer of the liquor license back to plaintiff. The instant action was then filed, in which plaintiff asked for damages, injunctive relief and specific performance of the lease agreement.

The trial court found that it was difficult to ascertain the amount of damage and that the facts justified a decree of specific performance. The decree ordered defendant to make application to the California State Board of Equalization for the transfer to plaintiff by defendant of the liquor license and provided that in the event the board failed to approve and carry out the said transfer, the liquor license should revert to the defendant as his sole and individual property and without further prejudice under and by reason of the decree.

Appellant first argues that the provision in the lease for the transfer of the liquor license back to the lessor is illegal and void; that the liquor license confers only a personal privilege and not a property right and that no legal agreement can be entered into to transfer a liquor license as a chose in action or as personal property. These contentions are without merit.