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. The record shows that when he applied for the permit, he did not state it was for the purpose of building a photographic laboratory, but for the purpose of constructing a “. . . double garage on rear of lot according to plans”; and that following the granting of the permit as requested, he altered his copy by adding the words, “photo and workshop.” The city official in charge of the issuance of building permits testified that such words were not on the original issued by his office.

*366 The majority opinion notes that a variance permit would have allowed the use of plaintiff’s residence for business purposes. Of course that would be true, but only if such a variance had been requested and then only if approved by the city council. However the record is completely barren of any evidence in this regard.

If plaintiff’s damages are to be considered as compensatory for his costs of moving his photographic equipment in reliance upon defendant’s promise, then by reason of his knowledge of the specific prohibition upon the use of the premises for business purposes, and absent any showing that a variance permit had been granted, assured, or at least applied for, certainly it cannot be said that the expenditures so incurred by him were “provident and reasonable’’ as noted in the statement of the rule as set forth in Restatement of Contracts, section 333, comment b.

Courts should not lend their assistance or encouragement to the consummation of acts which public policy specifically forbids.

I would reverse the judgment.

A petition for a rehearing was denied June 21, 1960. Peek, J., was of the opinion that the petition should be granted. Appellant’s petition for a hearing by the Supreme Court was denied July 20, 1960. Peters, J., was of the opinion that the petition should be granted.