Ortize

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,…

I dissent. It clearly appears from the memorandum opinion of the trial court and its findings that the damages awarded represented the cost to plaintiff of moving his photographic equipment—an act obviously necessary to the use of the property as a photographic laboratory and admittedly in violation of the Atwater zoning ordinance.

If, as the majority holds, plaintiff may recover only because he failed to actually so use the premises, then it follows that had he begun operations at his home prior to defendant’s refusal to lease his building, we would be compelled to deny recovery. I believe that such a distinction, under the facts shown, is entirely too fine and lends judicial approval to conduct which admittedly was in furtherance of an illegal purpose.

Plaintiff’s conduct throughout was tinged with illegality. At the outset the basis of his complaint was that in reliance upon defendant’s agreement to lease his building, plaintiff moved his equipment to his home for the avowed purpose of conducting a business which he knew was prohibited by law. That he knew such was violative of the zoning ordinance is well illustrated by his conduct in obtaining the necessary building permit.…