Sudden Lumber Co. v. Blue Diamond Co.

WOOD, J.

Plaintiff leased certain premises in the city of Vernon to defendant for a term of ten years from December 11, 1926, for the purpose of excavating sand and gravel. Defendant agreed to pay a stated price per cubic yard with a minimum fixed for each calendar year. The following provisions appear in the lease: “It is understood that the above royalty shall be net to Lessor, and without the deduction of any charge for expense of operation or otherwise. Lessee shall not be required to pay any royalties until four months after the first day of the month succeeding the date of receiving the permit provided for in the next succeeding paragraph, and such time as Lessee is prevented from excavating on said premises by inclement weather shall be added to said four months’ period; provided, however, that all sand and

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gravel excavated during said period shall he charged to the Lessee and shall he settled for at the time of said first payment. 3. Lessor shall forthwith seek a permit from the city of Vernon, state of California, whereby and whereunder the Lessee, either as Lessee of the owner or as its employee, shall be permitted to excavate in accordance with the terms hereof, and Lessee will render all reasonable assistance within its power in the obtaining of said permit and will share equally with the Lessor the actual expenses in obtaining said permit, but in the event that said permit is refused and it becomes necessary to institute legal action to enforce the granting thereof, all such action shall be taken by the Lessor in its own name and at its own expense. 4. In the event that Lessor or Lessee is unable to gain permission, either by permit, or as an employee, or otherwise, to excavate said premises as above provided in paragraph 3, after using all due diligence to secure such right to operate, then and in such event the Blue Diamond Company will forthwith commence the minimum rental payments as above specified, or will forthwith quitclaim said premises to Lessor.”

The parties failed to obtain a permit from the city of Vernon and thereupon an action was commenced in the superior court to obtain a writ of mandate to compel the issuance of the permit. This action failed and an action was thereupon commenced in the United States District Court and a preliminary injunction obtained on August 1, 1927, whereby the city of Vernon was enjoined until the further order of the court from interfering with the parties in the matter of excavating sand and gravel. No further order was made in the United States District Court until March 28, 1930, at which time the proceeding was dismissed. Defendant did not at any time take physical possession of the property or remove sand or gravel therefrom. On January 7, 1928, the parties entered into an agreement in writing whereby upon the assignment of the lease to one Ehrlich the defendant, was released from all obligations of the lease accruing after January 1, 1928. Plaintiff seeks to recover in this action rental claimed to be due for the period prior to January 1, 1928.