Dairy Food Store, Inc. v. Alpert

California Court of Appeal Sep 18, 1931 No. Docket No. 6661.Published

Before: Bishop

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Holding. The court held that defendants were excused from their agreement to lease space in a contemplated building because the building was never constructed due to external changes in street plans, rendering the subject matter of the agreement nonexistent.

Issues

Whether the defendants were excused from a lease agreement when the specific building contemplated by the parties was not constructed due to external causes.
Whether the trial court was justified in finding that a change in building dimensions resulting from city street planning rendered the subject matter of the contract nonexistent.

Disposition. affirmed

Quotations verified verbatim against the opinion

“It is . . . well settled that where performance depends upon the existence of a given thing, and such existence was assumed as the basis of the agreement, performance is excused to the extent that the thing ceases to exist”

“The point at which the alteration in a plan passes from the inconsequential to the vital, so that the product of the final plan ceases to be the project of the original plan, is one of fact, peculiar to each case.”

BISHOP, J.,

pro tem.

We approve the conclusion reached by the trial court, that the defendants were released from their agreement to lease to plaintiff a portion of a building to be erected, because not the building contemplated but a different one was constructed, the change being due to causes over which the parties had no control. The agreement in question was written by C. H. Gibson, plaintiff’s president, and by him presented to the defendants for their signatures. In so far as it need be before us, it reads:

“June 22, 1927.

“Mr. C. H. Gibson,

“Pasadena, California.

“Dear Sir: We hereby offer to you 12 feet, inside measure to run 75 ft. southerly along the West wall of the building we are to build on the C. H. Baker Property on the corner of Colorado Street and Garfield Avenue, Pasadena. . . . $350.00 to be paid upon the signing of the contract for building and $450.00 to be paid upon the signing of the lease. Completion to be as soon as possible.

“ (Signed) M. L. Albert.

“Esther B. Albert.

“Accepted C. H. Gibson.”

Whatever Gibson understood, at the time he drew and “accepted” this offer, about the identity of the intending builder, whether it was the defendants, as the offer would indicate, or Baker, as was the fact, he did know that the plan was to erect the building on the land of Baker, and that the source of defendants’ rights in the building would be a lease from Baker. He also knew, as did every party to the transaction, that the city of Pasadena was about to open a street which would cut off a part of the lot upon which the projected building was to be placed. At the time the offer was made and accepted it was quite definitely understood' that the width of the new street would permit a building with a frontage of forty-six feet, and it was this building which was then contemplated. A change in the city administration was followed by a change in the street program, resulting in a wider street by eight feet, making impossible the erection of a forty-six foot building.

[672]

Dairy Food Store, Inc. v. Alpert

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BISHOP, J.,

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