Menning

This is an action instituted by the plaintiff, appellant here, against the defendant, respondent here, seeking specific performance of a lease, or alternative relief in damages in the sum of $26,200, in the event he cannot be granted specific performance. In this lease defendant was lessor and plaintiff was lessee, which lease covered three lots owned by defendant in the city of Hynes, in Los Angeles County. The lease was in writing and leased the said premises to plaintiff for a gasoline service station and garage business for a period of five years. At the time, of the execution of the lease on January 26, 1929, plaintiff paid to defendant $50 for the first month’s rent and thereafter on February 4, 1929, he paid plaintiff the sum of $150 for the second and last month’s rent. The defendant agreed to erect and place upon said premises certain buildings and improvements. The complaint alleges that defendant failed, neglected and refused to comply with, the terms of said lease and to erect and place upon said premises said buildings and improvements.

The defense to the action is based on the allegations in the answer to the effect that by mutual mistake, inadvertence and neglect…