Silver's Liquor Stores, Inc. v. Creeden

McCOMB, J. Plaintiff appeals from a judgment in favor of defendant refusing to decree the cancellation of a lease of real property on the ground of misrepresentation.

Facts: Defendant owned a building at 1292 West Willow Street, Long Beach, California. In October, 1946, the building fronted on Willow Street and had full and free access for both automobile and foot traffic.

In October of 1946, defendant leased the building to plaintiff for a period of five years for a total rental of $9,000, the lease to commence on February 1, 1947. The date of [196]commencement was extended to March 15, 1947, because defendant could not give possession.

Prior to making the lease defendant had been informed that the city of Long Beach intended to erect a bridge with approaches which would affect defendant’s property.

After the lease was entered into, and before plaintiff took possession, the city of Long Beach caused to be constructed a bridge somewhat east of the store, the bridge being so constructed as to effectively cut off all access to and from said store from the highway and almost totally blocking the view of the store from the highway.

Plaintiff instituted the present action claiming that defendant had misrepresented that there would be free access to the store; that there would be parking in front of the store on the street; and that the proposed bridge would not adversely affect the premises.

Defendant filed a cross-complaint seeking the amount of rental due under the lease. The trial court gave judgment in favor of defendant on the complaint and in favor of defendant on his cross-complaint.

Plaintiff’s contention that the following findings of fact are not supported by substantial evidence is without merit:

1. “That it is true that at the time, and prior to the time the said lease was entered into, the defendant and cross-complainant represented to the plaintiff and cross-defendant that a bridge was to be placed near the said premises.”

This particular finding is supported by the allegation in paragraph I of plaintiff’s complaint.

2. “That it is not true that the defendant and cross-complainant represented that the said bridge would in no way interfere with access to or from said premises.”