Bancroft v. Goldberg, Bowen & Co.

[417]

THE COURT.

The following statement of facts, which is sustained by. the record, is taken from the opinion of the district court of appeal for the first district in this case, filed December 27, 1912:

This is an appeal from a judgment against defendant taken more than sixty days after the entry of judgment, which was for the principal sum of seven hundred and fifty dollars, and interest in the sum of $50.30 and costs..

Plaintiffs on the thirtieth day of June, 1906, by a written instrument of said date, leased to defendant, a corporation, certain premises, at a monthly rental of seven hundred and fifty dollars per month, until the thirtieth day of June, 1911.

The lease contained the following provision: “It is furthermore understood that, as the said party of the second part has erected a building upon said premises at its own expense, the said building will, at the termination of this lease be and remain the property of the party of the second part. Moreover, it is expressly stipulated, that should that part of said building situated on the premises described on page one (1) of this lease, as distinguished from that part of the building situated on the land described on page two (2), be destroyed by fire or be tom down in pursuance of a municipal order, or a law or ordinance, at any time after two years from date, this lease shall immediately terminate, and the party of the second part shall be relieved of all its rights and liabilities thereunder.”

The premises were and are within the fire limits of the city and county of San Francisco as established by an ordinance duly adopted by the board of supervisors of said city and county of San Francisco at some time prior to the erection of the building thereon. This building was a wooden structure and was erected by defendant on said premises between the eighteenth day of April and the thirtieth day of June, 1906.

The building was also erected in violation of the provisions of a general building ordinance of the city and county of San Francisco, adopted on February 5, 1903. This ordinance, as well as the ordinance fixing the fire limits, prescribes a penalty for any violation thereof.