Stewart v. Kaplan

DORAN, Acting P. J. The complaint herein alleges that during the month of December, 1945, a contract was entered into whereby the defendant builders agreed to construct for plaintiff a unit of store buildings and living quarters on a lot owned by plaintiff in Sherman Oaks, at an agreed price of $23,690. It was further alleged that in January, 1946, plain[454]tiff approved completed plans for such building, and made a deposit (of $100) on the contract; that the parties discussed current rumors to the effect that the federal government planned to prohibit commercial construction, and that it was agreed that immediate application for a building permit should be made by defendants in order to forestall the rumored “freeze” by the federal government on this type of building. The complaint then avers that defendants failed to apply for a building permit until March 15, 1946; that on March 28, 1946, the federal government forbade further issuance of permits for commercial building; that by reason of defendants’ failure to make timely application for the permit, the same was not issued prior to the governmental prohibition, for which reason the building was never constructed and plaintiff was thereby deprived of the rental value thereof in the sum of $1,000 per month. The complaint was in two counts; the first alleging that the delay was “willfully and knowingly” effected, and the second count alleging that plaintiff’s damage resulted from the fact that the defendants “negligently and carelessly failed and omitted to apply for a building permit, in accordance with their promises and agreements.”

The answer denied the making of any completed contract to construct the building for plaintiff and alleged that the latter’s payment of $100 was not a deposit on said contract but merely part payment for the cost of plans and drawings of a proposed building. Later on, plaintiff paid a further sum of $200 towards the costs of such plans. Defendants also denied any agreement to immediately apply for a building permit, denied any negligence, and by way of cross-complaint sought judgment in the amount of $390, balance due for preparation of the building plans. The trial court rendered judgment in favor of plaintiff in the sum of $4,000, and upon defendants’ cross-complaint in the sum of $390. Defendants have now appealed from the judgment in plaintiff’s favor.

The trial court found that the contract alleged had been duly entered into and that the plans therefor had been prepared and approved; that the rumor in reference to governmental “freezing” of commercial building was known to both parties, and that defendants agreed “to file said plans with the City of Los Angeles and apply for said building permit as quickly as possible in order that said permit would be obtained and the construction . . . started before the United States Government enacted measures curtailing construction of business buildings.” The court further found that the