Dunn v. Richard & John Stegemann

[39]

HALL, J.

Appeal from judgment against defendants and •order denying defendants’ motion for a new-trial.

The action was brought by plaintiffs, as the lessors, to recover rent for certain premises, situate in the city and county of San Francisco, let to the Stegemanns. The San Francisco Breweries, Limited, guaranteed the payment of the rent and other covenants to be performed by Stegemann Bros.

No issue is made in the pleadings as to the execution of the lease, which is set forth in full in the pleadings.

The lease contains the following provision: ‘ ‘ The said parties of the second part [lessees] agree not to directly or indirectly use, or allow to be used, the said premises for any ■other purpose than that of saloon and cigar-stand without the written consent of the parties of the first part.”

In response • to certain issues presented by the pleadings the court found, “That the charter and ordinances of the •city and county of San Francisco provide that no person shall engage therein in the sale of liquor as retail liquor •dealer or saloon-keeper without first securing a permit or license therefor in the said city and county of San Francisco, and that no permit or license shall be granted for such sale in any .premises situated within one hundred fifty (150) feet of a church.”

‘ ‘ That at all the times mentioned • in the said agreement' and in the pleadings herein a church stood within one hundred feet of the premises described in said agreement,” and that this fact was well known to both plaintiffs and defendants. This last finding is in accordance with plaintiffs’ answer to defendants’ cross-complaint.

It thus appears that the saloon business could not be carried on in the demised premises without a violation of law. Under the charter and ordinances of the city and county of San Francisco such business could not be carried on without a license at any place in the city and county of San Francisco, and no license could be granted to carry on such business in the said premises. The business for which the premises were let could not be carried on in said premises without a violation of the charter and ordinances of the city and county of San Francisco as well as the Penal Code of the state. (Pen. Code, sec. 435;