Menning v. Sourisseau

JORGENSEN, J.,

pro

tem.

This is an action instituted by the plaintiff, appellant here, against the defendant, respondent here, seeking specific performance of a lease, or alternative relief in damages in the sum of $26,200, in the event he cannot be granted specific performance. In this lease defendant was lessor and plaintiff was lessee, which lease covered three lots owned by defendant in the city of Hynes, in Los Angeles County. The lease was in writing and leased the said premises to plaintiff for a gasoline service station and garage business for a period of five years. At the time, of the execution of the lease on January 26, 1929, plaintiff paid to defendant $50 for the first month’s rent and thereafter on February 4, 1929, he paid plaintiff the sum of $150 for the second and last month’s rent. The defendant agreed to erect and place upon said premises certain buildings and improvements. The complaint alleges

[637]

that defendant failed, neglected and refused to comply with, the terms of said lease and to erect and place upon said premises said buildings and improvements.

The defense to the action is based on the allegations in the answer to the effect that by mutual mistake, inadvertence and neglect of both parties to the lease they failed to incorporate in said written lease a provision agreed to by the parties, that is to say, defendant alleges it was agreed between the parties in order to erect said buildings and make said improvements that it would first be necessary for the lessor to borrow the money secured by a lien on the property and that there was to be inserted in said lease a condition wherein and whereby the lessor was to make application for a loan upon said property, the funds derived therefrom to be used to erect the buildings and to make the other improvements upon said property as set forth in the lease, and that the failure of the lessor to procure said loan for said purposes within thirty days from the date of the lease to operate to terminate the lease and in such event the lessor should forthwith return the deposit of $200 to the lessee.

There is no question but that defendant failed to erect the buildings and let the plaintiff into possession as agreed, although the record shows that he commenced work upon the same, but the trial court found in favor of the defendant on the special defense above set forth and further found in effect that defendant had endeavored in good faith to obtain such a loan, but on account of a suit to quiet title having been instituted, he was unable to procure a loan on the property; that defendant did not know of the pendency of said suit until February 14, 1929, and that he thereafter and on that day offered to return the plaintiff his $200 deposit, which plaintiff refused to accept. The court gave judgment for defendant and ordered the lease to be reformed in accordance with defendant’s contentions, but gave judgment for plaintiff for the $200 deposited as rent.