WOOD (W. J.), J. Plaintiffs by a written instrument leased to defendant, a Japanese, part of the premises located at the northeast corner of First Street and Los Angeles Street in the city of Los Angeles for the period beginning February 1, 1940, and ending January 31, 1944, at a monthly rental of $175. In this action plaintiffs pray that a judgment be entered declaring that the compulsory evacuation of defendant from the city of Los Angeles will not affect the rights and duties of the parties under the lease. Defendant has appealed from a judgment granting relief to plaintiffs as prayed.
The record before us consists of the complaint, the answer and the findings and judgment. The findings recite that the court had examined the pleadings and-“written stipulations’ ’ but no stipulations are in the record. Nor does it affirmatively appear in the record whether any evidence was received by the court. In the complaint it is alleged that defendant is a person of Japanese ancestry and that on May 3, 1942, an order was issued by the officer in command of the army of the United States on the Pacific coast whereby all persons of Japanese ancestry on and after May 9, 1942, were to be excluded from that portion of the city of Los Angeles in which the demised premises are located. It is further alleged that plaintiffs had sent to defendant a letter, a copy of which is attached to the complaint, by which they waived any requirement in the lease that defendant personally occupy the demised premises and by which they consented to any assignment or sub-lease of the premises which defendant would care to make. It appears from a copy of the lease which is attached to the complaint that plaintiffs had leased to defendant all of the second floor of the building at the corner referred to, one of the entrances being on First Street and the [192]other entrance being on Los Angeles Street. It is provided in the lease that the lessee shall personally occupy the demised premises. In paragraph XI of the lease it is provided that “the lessee shall use the premises for conducting a hotel and renting office space, and for no other purpose, except upon the written consent of the lessors.”
Defendant filed an answer in which he alleges that he had been ordered by competent authorities to leave Los Angeles and its vicinity, that he had no alternative hut to comply with the order and that, as a consequence, it was impossible for him to comply with the terms and conditions of the lease. Defendant prays that a judgment be entered declaring that his obligations under the lease were terminated by the evacuation order.
The findings of the trial court follow the allegations of the complaint. The court also found that during the period commencing February 1, 1940, and ending May 11, 1942, defendant conducted a hotel business on the leased property, but that during this period he “did not reside in or upon the demised premises, but employed various persons to reside on said premises and manage the hotel business conducted therein. Bach day during said period the defendant visited the demised premises for the purpose of supervising and assisting the resident manager in his work.” Under the heading “Conclusions of Law” the court concluded that the evacuation order did not make it impossible for defendant to perform his obligations as lessee under the lease and that the order did not effect a discharge of defendant’s obligations under the lease.
A brief has been filed on behalf of the Japanese-Ameriean Citizens League as amicus curiae. It is set forth in this brief that the Japanese-Ameriean Citizens League is a national organization, organized in 1920 and incorporated in 1937; that it represents approximately 20,000 American citizens of Japanese ancestry; that it is maintained to protect their interests; that many members of the league are in a position similar to that of defendant; and that they have other contractual obligations which because of the evacuation order are either impossible of fulfillment or can be fulfilled only as the result of “unconscionable hardship.” It is contended on behalf of the league that the record before the court does not disclose sufficient facts to enable the court to determine the intention of the parties to the lease, the ability of the [193]lessee to comply with the terms of the lease, or the possibility that the property can be used for the purpose for which it was leased. It is suggested that the judgment should be reversed and a new trial permitted in order that evidence of all the pertinent facts necessary to a fair and accurate determination of the issues may be before the court.
There is much discussion in the briefs of the parties concerning matters which are not covered by the record. On behalf of defendant it is asserted that the location in question is in the center of that area which prior to the evacuation order against all persons of Japanese ancestry was frequently designated as “Little Tokio;” and that not only was defendant excluded from Los Angeles but also “the very persons who were tenants of the hotel were also, by the same government decree ordered away;” and that “over night ‘Little Tokio’ became a ghost town.” Appellants point out that there is no evidence in the record to support these claims and assert that, “had such allegations been pleaded or any evidence been offered in support thereof, it could have been established by competent evidence that the demised premises are actually on the outskirts of the Japanese district, and that many, perhaps a majority, of the inhabitants of the hotel were white persons unaffected by the exclusion orders.”
The rule which should be applied to the present action is stated in Restatement of the Law of Contracts, section 288: “Where the assumed possibility of a desired object or effect to be attained by either party to a contract forms the basis on which both parties enter into it, and this object or effect is or surely will be frustrated, a promisor who is without fault in causing the frustration, and who is harmed thereby, is discharged from the duty of performing his promise unless a contrary intention appears.” This rule was followed in Johnson v. Atkins, 53 Cal.App.2d 430 [127 P.2d 1027], where it was held that a contract for the sale of copra for shipment to Colombia was terminated when the purpose of the purchase was frustrated by the cancellation by that country of permission for entry. It is apparent from the instrument now before us that the “desired object” of the parties was to provide “for conducting a hotel and renting office space. ’ ’ It cannot be determined from the record before us whether this object has in fact been “frustrated.” The trial court did not find, and we are unable to determine, [194]whether the evacuation of the Japanese from the vicinity of the premises in question made it impossible to conduct a hotel or rent office space therein. The very location of the , premises as regards its proximity to Japanese or non-Japanese establishments appears to be in doubt.
The issues presented should not be decided upon the incomplete factual record now before the court. Upon the going down of the remittitur the trial court should permit such amendments to the pleadings and such proof as will enable the court to accurately ascertain and declare the rights and obligations of the parties.
The judgment is reversed. Neither party to recover costs on appeal.
McComb, J., concurred.