Watson v. Rotary Colorprint Inc.

YORK, P. J. The trial court sustained a general and special demurrer to plaintiff’s complaint without leave to amend on November 15, 1943, and notice thereof was given on November 16, 1943. On July 31, 1944, plaintiff filed his notice of motion to vacate the order sustaining the demurrer and for leave to file an amended complaint. Such motion was denied on August 9, 1944, on the ground that the proposed amended complaint did not state a cause of action on either of the two counts therein alleged, whereupon judgment of dismissal was filed and entered. This appeal is prosecuted by the plaintiff from such judgment of dismissal and also from the order denying permission to file his amended complaint.

The action is one for declaratory relief and for damages, the complaint alleging a written lease and agreement, dated January 2, 1940, running for a period of two years from December 20, 1939, subject to the right of either party to cancel the same upon 180 days’ written notice. By the terms of the lease defendant was to print plaintiff’s newspaper publications “of the same type and kind as those now being published” weekly or semiweekly, and “In the event that any such publication is published daily, or any other material change made from present practices, mutual agreements satisfactory to both parties shall be entered into regarding price or other changes which may be required by reason of such changes.” It was alleged in the complaint “IV. That at the time of entering into said lease and said agreement, as well as for sometime prior thereto, it was the purpose, understanding and agreement that said plaintiff, as first party in said agreement, was the sole owner of the Glendale Star and associated newspapers, then being published weekly or semiweekly in the City of Glendale, California, and circulated therein and in the surrounding territory, and that plaintiff at that time had a composing room with all necessary machinery for the composing of his publications, and that plaintiff was desirous of securing a press and stereotyping machinery [121]on or near his premises for the printing of his publications, and that the defendant ... as second party, was the owner of a twenty-four (24) page duplex tubular printing press and all the necessary stereotyping equipment that can be used for said purposes, and that said defendant was desirous to have said equipment installed at or near the plant of plaintiff for the purpose of printing said first party’s publications, as well as doing such other printing of publications and miscellaneous printing as said second party may desire; and that at said times aforesaid, it was the purpose, understanding and agreement that during the term of said lease and said agreement, the Glendale Star or its successor, and any other publication published by first party, shall be printed by said second party, and that second party was to furnish the press work, the paper, and the ink; and that at said times it was also the purpose, understanding and agreement between the parties to said contract, and was well known to second parties that first party, plaintiff herein, was by entering into this said lease and agreement preparing to and was to publish, in addition to his established papers, a daily newspaper, and that plaintiff was making available said space mentioned” in said lease and agreement, “so that he could publish those already established and the daily then to be started, and that plaintiff was in need of said equipment and service from defendant so that he could publish same.”