Ortize v. Smith

VAN DYKE, P. J. This is an appeal from a money judgment in an action for damages for breach of an oral promise to lease certain real property.

The trial court, sitting without a jury, found, in substance, that on or about the 10th day of January, 1958, the appellant promised to lease premises at 1466 Broadway, At-water, to respondent for use as a photographic studio; at that time appellant knew that in reliance upon said promise respondent would incur considerable expense in moving his photographic equipment and fixtures from his place of business at 5939 Bellevue Eoad, Atwater, to his home at 1870 Third Street, Atwater, at which latter location respondent planned to do the developing work for the studio to be operated upon the premises leased from appellant; that respondent did so move his equipment to his residence, but appellant refused to lease the premises at 1466 Broadway to respondent, who therefore necessarily incurred the additional expense of moving his equipment back to 5939 Bellevue Eoad; that the reasonable cost incurred by respondent in moving his equipment as aforesaid was $750.

Appellant does not challenge the sufficiency of the evidence to support the trial court’s findings, but contends that the judgment entered in accordance therewith cannot be upheld because of the illegality of the action induced by the promise to lease.

Over respondent’s objections, there was introduced in evidence the “Ordinance, Land Use and Zoning’’ and the “Land Use Zoning Map’’ of the City of Atwater. It appears therefrom that respondent’s property at 1870 Third Street, to which he moved his equipment, was zoned for single family residence purposes and the use thereof for any commercial purposes, including the conducting thereon of a photographic laboratory, was unlawful. A proposed finding to that effect was rejected by the trial court on the ground that it was without the issues. We agree. The defense of illegal conduct [365]was not made ont. There was nothing illegal in moving the equipment to a building wherein commercial businesses were prohibited, nor in its return to its former situation. Nor does it appear that it could not have been lawfully used in the place it was moved to under a variance permit. Only its use, which did not occur, could be illegal, and illegal conduct in future cannot be assumed. This latter is, however, beside the point. The conduct induced was not unlawful. The theory of recovery was that of informal contract as treated in Restatement of Contracts, Topic 4, section 90, commonly called “promissory estoppel.” (See California Annotations, § 90.)