Aristocrat Highway Displays, Inc. v. Stricklen

MARKS, J. This is an appeal from a judgment for defendant in an action to recover the rental of two highway advertising signs which plaintiff erected for defendant on Highway 99, north and south of Bakersfield.

The written contract was dated October 14, 1941, and provided that defendant pay plaintiff $75 per month for thirty-six months for the use of the signs. It contained an acceleration clause in the event of failure to pay the monthly rental and also the following :

“Total number of displays 2. Illuminated 1 Yes. . . . Any loss of advertising, damages or delays caused by the Act of God, strikes, labor conditions, or other cause beyond the control of Aristocrat Highway Displays, Inc., shall be satisfied by Advertiser being accorded suitable and co-extensive advertising in extended service at the expiration hereof.”

On December 16, 1941, the Board of Supervisors of Kern County passed an emergency ordinance which contained the following:

“Section 4. The maintenance or leaving of any illumination, except within a blackout structure, without provision for its extinguishment, within one minute after the commence[790]ment of a period of air raid alarm by a competent person over the age of eighteen years attendant at the place where such illumination is controlled, is hereby prohibited.”

On August 5, 1942, Lieutenant General J. L. DeWitt issued a proclamation which, after that date, prohibited the electrical illumination of such highway advertising signs as are involved here.

While the contract did not so provide, the parties agree that the two signs were to be illuminated by electric lights.

The evidence is not clear on the question of when work on the two signs started but it is probable that the actual work of placing them along the highway was started after December 7, 1941. Plaintiff discontinued work on them on January 23, 1942. They were completed except that they were not wired and had no electric lights on them. They were never illuminated.

The parties negotiated in an endeavor to agree upon a rental to be paid by defendant for these unilluminated signs. The negotiations failed and defendant paid plaintiff nothing.

On September 30, 1942, this action was brought to recover $2,700, the total rental specified in the contract for the three-year period. The action was brought on the contract. At the conclusion of the trial, judgment was rendered for defendant, and properly so, because plaintiff was not prevented from fully performing its obligations under the contract by the ordinance of Kern County which did not prohibit the illumination of the signs if the conditions under which illumination was permitted were met. These conditions simply made performance by plaintiff more difficult and expensive.