Walter Houston Anderson.

Actions for declaratory judgments : a treatise on the pleading, practice, and trial of an action for a declaratory judgment, from its inception to its conclusion, with forms online

. (page 88 of 112)
Online LibraryWalter Houston AndersonActions for declaratory judgments : a treatise on the pleading, practice, and trial of an action for a declaratory judgment, from its inception to its conclusion, with forms → online text (page 88 of 112)
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supplying water to any consum-
er, record failed to disclose any
evidence which would compel
finding that rates in question
were insufficient to pay cost of
supplying water to consumers.
The evidence failed to establish
that classifications and rate struc-
tures were unlawful.
Wis. — Town of Greenfield v.
City of Milwaukee. 272 Wis. 388,
75 N.W.2d 434. In action by
town against city to have ordi-
nance annexing certain territory
of town to city declared invalid,
trial court's finding, based on cir-
culator's testimony, that circula-
tion of petition for annexation
had actually been commenced on
a certain date was sufficient to
show compliance with statutory
requirement that notice be pub-
lished at least ten days before
petition is circulated.
34. U.S.— State of N.J. v. U.S.,
D.C.N.J., 168 F.Supp. 324, affd.,
79 S.Ct. 607, 359 U.S. 27. 3 L.Ed.
2d 625, reh. den. 79 S.Ct. 722,
359 U.S. 950. 3 L.Ed.2d 683;
National Business & Property Ex-
change, Inc. V. Oklahoma Real
Estate Commission, D.C.Okl., 170
F.Supp. 904; Amedee v. Fowler,
D.C.La., 275 F.Supp. 659; Stras-
ser V. Doorley, D.C.R.I., 309
F.Supp. 716, aflFd. in part, vac. in
part on oth. grds., C.A., 432 F.2d
567.

Ala. — Blankenship v. City of
Decatur, 269 Ala. 670, 115 So.2d
459.

Cal. — Katzev v. Los Angeles
County, 52 C.2d 360, 341 P.2d
310; Consolidated Rock Prod-
ucts Co. V. City of Los Angeles,
20 Cal.Rptr. 638, 57 C.2d 515.
370 P.2d 342, app. dism. 83 S.Ct.
145, 371 U.S. 36. 9 L.Ed.2d 112;
Aeration Processes, Inc. v. Ja-
cobsen, 8 Cal.Rptr. 85. 184 C.A.



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2d 836; Carolina Lanes, Inc. v.
City of Los Angeles, 61 Cal.
Rptr. 630, 253 C.A.2d 831; Wat-
son V. Merced County, 78 Cal.
Rptr. 807, 274 C.A.2d 263.
D.C.— Apache County v. U.S.,
D.C., 256 F.Supp. 903.
Mass. — Frontier Research Inc. v.
Commissioner of Public Safety,
351 Mass. 616, 222 N.E.2d 854.
Mich. — Jourden v. Wyoming Tp.,
358 Mich. 496, 100 N.W.2d 284.
Mo. — Deimeke v. State Highway
Commission, 444 S.W.2d 480.
N.H.— Levitt v. Maynard, 105
N.H. 447, 202 A.2d 478.
N.Y.— Barnes v. Gorham, 175
N.Y.S.2d 376, 12 Misc.2d 285.
Ohio — Wadsworth v. Dambach,
99 Ohio App. 269, 133 N.E.2d
158.

R.I. — Rhode Island Turnpike and
Bridge Authority v. Town of
Jamestown, 256 A.2d 479.
S.D.— Clem v. City of Yankton,
160 N.W.2d 125.

Tex. — Gil lam v. City of Fort
Worth, Civ.App., 287 S.W.2d
494, err. ref. no rev. err.; City
of Clute V. Linscomb, Civ. App.
446 S.W.2d Zn.

Wash.— Wells & Wade Hard-
ware, Inc. V. City of Wenatchee,
64 Wash.2d 103, 390 P.2d 701.

35. U.S.— State of N.J. v. U.S., D.C.
N.J., 168 F.Supp. 324, affd., 79
S.Ct. 607, 359 U.S. 27, 3 L.Ed.2d
625, reh. den. 79 S.Ct. 722, 359
U.S. 950, 3 L.Ed.2d 683; National
Business & Property Exchange,
Inc. V. Oklahoma Real Estate
Commission, D.C.Okl., 170 F.
Supp. 904; Amedec v. Fowler,
D.C.La., 275 F.Supp. 659; Strasser
v. Doorley, D.C.R.I., 309 F.Supp.
716, affd. in part, vac. in part on
oth. grds., C.A., 432 F.2d 567.
Ala. — Blankenship v. City of De-
catur, 269 Ala. 670, 115 So.2d 459.
CaL — Katzev v. Los Angeles
County, 52 C.2d 360, 341 P.2d



310; Consolidated Rock Products
Co. V. City of Los Angeles, 20
CaLRptr. 638, 57 C.2d 515, 370
P.2d 342, app. dism. 83 S.Ct. 145,
371 U.S. 36, 9 L.Ed.2d 112; Aera-
tion Processes, Inc. v. Jacobsen,
8 CaLRptr. 85. 184 C.A.2d 836;
Carolina Lanes, Inc. v. City of
Los Angeles, 61 CaLRptr. 630, 253
C.A.2d 831; Watson v. Merced
County, 78 CaLRptr. 807, 274
C.A.2d 263.

D.C— Apache County v. U.S.,
D.C, 256 F.Supp. 903.

Mass. — Frontier Research Inc. v.
Commissioner of Public Safety,
351 Mass. 616, 222 N.E.2d 854.

Mich. — Jourden v. Wyoming Tp.,
358 Mich. 496, 100 N.W.2d 284.

Ma — Deimeke v. State Highway
Commission, 444 S.W.2d 480.

N.H.— Levitt v. Maynard, 105
N.H. 447. 202 A.2d 478.

N.Y.— Humbeutd v. City of New
York, 125 N.Y.S.2d 198. In ac-
tion for judgment declaring New
York City law providing that
members of police force shall be
retired and placed on pension
rolls at age 63 unconstitutional
and void, evidence was insufficient
to establish that such law was
indefinite, discriminatory, con-
trary to public policy or that it
failed to effectuate public policy
or promote efficiency.

Barnes v. Gorham, 175 N.Y.S.
2d 376, 12 Misc.2d 285.

Ohio— Wadsworth v. Dambach,
99 Ohio App. 269, 133 N.E.2d 158.

R.I. — Rhode Island Turnpike and
Bridge Authority v. Town of
Jamestown, 256 A.2d 479.

S.D.— Clem v. City of Yankton,
160 N.W.2d 125.

Tex.— Gillam v. City of Fort



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Worth, Civ.App., 287 S.W.2d 494,
err, rcf. no rev. err.; Gty of
Clute V. Linscomb, Civ.App., 446
S.W.2d 377.



Waah.— Wells & Wade Hard-
ware, Inc. V. City of Wenatchee,
64 Wash.2d 103, 390 P.2d 701.



§ 418. Default Cases — ^Weight and Sufficiency of Evidence



37. Mass. — Shoolman v. Wales Mfg.
Co., 331 Mass. 211, 118 N.E.2d
71. In suit for declaratory de-
cree, the taking of a bill as con-
fessed as against one defendant
did not insure a decree for the
plaintiff against her, but it only
established as true the facts prop-
erly pleaded, and required the
entry of whatever decree those
facts demanded.

N.Y.— Cranston v. Walton 164th
Street Corp., 115 N.Y.S.2d 331.
A declaratory judgment is a dis-



cretionary remedy which is de-
pendent upon circumstances ren-
dering it useful and necessary and
proof is required to enable court
to determine whether plaintiff is
entitled to the equitable relief
prayed for. In such a proceeding,
defendant's default admits the
traversable facts but not that
plaintiff is entitled to the precise
relief sought in the prayer, and
it is for the court to say whether
right to relief does or does not
flow from the facts.



§ 419. Vendor and Purchaser — ^Weight and Sufficiency of
Evidence

In declaratory judgment actions in which is contained the rela-
tionship of vendor and purchaser, the matter of weight and suffi-
ciency of evidence in such instances is best exemplified by reference
to particular cases involving such relationship.** ^ • ^



41.1. Cal.— Sparks v. Sparks, 101 Cal.
App.2d 129. 225 P.2d 238. In
action by father and son for
judgment declaring their deeds
to another son and his wife void,
evidence that plaintiffs were en-
titled to possession of realty con-
veyed at all times after receiv-
ing title thereto by exchange of
deeds before death of father's
wife, that father continued to
reside on premises after his wife's
death and resided there at time
of trial, and that plaintiff's son
resided thereon until he enlisted
in navy and for considerable time
after his discharge therefrom,
warranted trial court's finding



that plaintiffs had always been
in possession of property and
were entitled to possession there-
of. Whether transaction in which
father and son conveyed realty
to another son and his wife was
fair, and whether grantors were
imposed on by grantees, in whom
grantors reposed trust, were
questions for chancellor's con-
science and decree will not be
disturbed on appeal, if supported
by ally evidence in record, though
conflicting or contradictory evi-
dence may support opposing con-
clusion. The evidence also war-
ranted trial court's finding that



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father and his son, since deceased,
previously conveyed realty in-
volved to plaintiffs, though fa-
ther and wife actually conveyed
property to defendants, who in
turn conveyed it to plaintiffs, for
purpose of transferring title from
original owners to plaintiffs.
Ky. — Sinclair Mines, Inc. v.
Southern Land and Coal Co.,
280 S.W.2d 153 (Ky.). Where
corporation, whose charter had
expired prior- to execution of
agreement to buy its property,
named as defendants, in its suit
for declaration that deed would



convey good merchantable title,

(1) a new corporation which had
issued its stock in exchange for
shares in old corporation and

(2) six persons individually and
as representatives of shareholders
of old corporation at time that
its charter expired and as repre-
sentatives of shareholders' suc-
cessors and spouses, procedure
followed was sufficient, and judg-
ment, entered after precautionary
publication of advertisement as
to nature of proposed relief and
directing master commissioner to
convey title, was valid.



§ 420. Easements — Weight and Stifiiciency of Evidence

For consideration of the matter of weight and sufficiency of evi-
dence in declaratory judgment actions involving easements, atten-
tion is invited to the specific cases contained in the notes.***-'



42. Ariz.— Kengla v. Stewart, 82
Ariz. 365, 313 P.2d 424.
Fla. — Corrigans v. Sebastian
River Drainage Dist., App., 223
So.2d 57.

Ky. — Ground v. Harmon, 291
S.W.2d 529.

N.J. — Baker v. Normanoch Ass'n,
25 N.J. 407, 136 A.2d 645.
N.D. — Putnam v. Dickinson, 142
N.W.2d 111.

42.1. Cal.— Pacific Telephone & Tel-
egraph Co. v. City of Los An-
geles, 44 Cal.2d 272, 282 P.2d 36.
In action by telephone company
against city for declaration of
rights under statute providing
that telegrraph or telephone cor-
porations may construct lines
along and on any public road
and highway and across any wa-
ters or lands in state, evidence
supported finding that city ordi-
nance providing that company's
predecessor, as condition to re-
ceiving franchise, should agree
to vacate all other franchises,



did not contemplate vacation of
state franchise, and that com-
pany did not surrender or for-
feit rights under state franchise
by operating under city franchise.
Ore.— Shepard v. Purvine. 196
Ore. 348, 248 P.2d 352. In suit
for declaratory judgment estab-
lishing right of way for water
pipeline from spring on defend-
ant's land to plaintiffs' adjoining
land and right to portion of wa-
ter rising in spring, evidence did
not warrant trial court's conclu-
sion that plaintiffs were negli-
gent in failing to insist on formal
transfer by deeds of rights ac-
corded them by alleged oral lease,
granted them by predecessor in
title to defendant's land, to use
portion of water from spring and
maintain pipeline across defend-
ant's land, and hence not entitled
to recognition of their rights un-
der such license. The evidence
showed that oral license, granted



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landowners by owner of adjoin-
ing land, to use portion of water
from spring on licensor's land
and maintain pipeline across such
land to licensee's land, was not
temporary, but permanent, and



hence irrevocable, so as to en-
title licensees to declaratory judg-
ment establishing right of way
for such pipeline and their right
to portion of water from spring.



§ 421. Restrictions on Building— Weight and Sufficiency of
Evidence

The matter of weight and sufficiency of evidence in actions seek-
ing a declaration as to the validity or invalidity of building restric-
tions, or matters relative thereto, is best exemplified by reference to
individual cases involving such restrictions or related matter.***-^



43. U.S.— Gnible v. MacLaughlin,
D.C. Virgin Islands, 286 F.Supp.
24.

Cal. — Ascherman v. McKee, 143
C.A.2d m, 299 P.2d 367; How-
ard Homes, Inc. v. Guttman, 12
Cal.Rptr. 244, 190 C.A.2d 526.
ky.—Rieger v. Wesscl, 319
S.W.2d 855.

La. — ^Johnston v. Frantom, App.,
159 So.2d 404.

Mich. — Dipboye v. Acchione, 351
Mich. 550, 88 N.W.2d 611.
N.M^ — Chuba v. Glasgow, 61
N.M. 302. 299 P.2d 774.
N.Y.— Donegan v. Boylan, 199
N.Y.S.2d 979, affd. 218 N.Y.S.2d
973, 13 A.D.2d 979.

49.1. Md^-Turner v. Brocato, 206
Md. 336, 111 A.2d 855. In suit
by owners of lots in suburban
residential development, subject
to restrictions against business
use thereof, for declaration that
defendant's lot was part of de-
velopment and hence similarly
restricted, though conveyed to
them without restriction, evidence
showed general plan or scheme
for improvement of property in
development and consequent ben-
efit thereof, entry into covenants
imposing restrictions as part of
general plan to be exacted from
all purchasers of lots for benefit



of each of them, purchasers with
reference to such plan, or scheme,
and entry of covenants into con-
sideration of purchase so as to
warrant inference that restric-
tions were for common advan-
tage of all purchasers from de-
veloper, and not for his personal
benefit.

Feldman v. Star Homes, Inc.,
199 Md. 1, 84 A.2d 903. Where
city planning commission ap-
proved subdivision plans, at-
tached to application for building
permits, providing for proposed
roads, and adjacent property
owners filed bill for declaratory
judgment alleging that proposed
roads would seriously affect and
irreparably damage their prop-
erty and character of the neigh-
borhood, but the proposed roads
did not touch adjacent property
owners* lots at any point nor
would any conceivable extension
or continuation of the roads cross
their property, and only damage
claimed was that noise would be
created by vehicles having to
turn around because street would
be dead-end, case for declaratory
relief was not made out

N.M. — Gorman v. Boehning, 55
N.M. 306. 232 P.2d 701. In action



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for declaratory judgment to de-
termine whether building restric-
tions were in effect in subdivi-
sion, evidence was sufficient to
support findings that defendants
had actual and constructive no-
tice of restrictions contained in
deeds, that there was no aban-
donment of the original plan of
restrictions, and that charter of
area had not changed sufficiently
to warrant striking down restric-
tive covenants as being without
value.

Pa. — McCandless v. Buran, 377
Pa. 18. 104 A.2d 123. In action
for declaratory judgment, evi-
dence sustained finding that



building restriction did not apply
to lots, on which erection of in-
surance office building was pro-
posed, either by express covenant
or by implied covenant.
S.C.— Martin v. Cantrell, 225
S.C. 140, 81 S.E.2d 37. In action
for declaratory judgment declar-
ing invalid restrictions prohibit-
ing use of realty for other than
residential purposes, evidence
failed to show that there had
been such substantial changre in
essential character of neighbor-
hood since imposition of such re-
striction as to make their further
enforcement oppressive and in-
equitable.



§ 422. Leases — ^Weight and Sufficiency of Evidence

With reference to the matter of weight and sufficiency of evi-
dence in actions seeking declarations as to the rights and liabilities
of parties under a lease, the validity thereof, or the construction
of its provisions, attention is invited to particular cases involving
such issues.*''-^



U.S. — Albert v. Joralemon, C.A.
Ariz., 271 F.2d 236.
Cal.— Carter v; Adler, 138 C.A.
2d 63, 291 P.2d 111; Wommack
V. McClure, 139. C.A.2d 641, 294
P.2d 513; Western Motors Ser-
vicing Corp. V. Land Develop-
ment & Inv. Co., 152 C.A.2d 509,
313 P.2d 927; Buck v. Hardwell,
161 C.A.2d 830, Zll P.2d 223; Ban-
denbergh, v. Davis, 12 Cal.Rptr.
222, 190 C.A.2d 694; Froomer v.
Drollinger, 19 Cal.Rptr. 891, 201
C.A.2d 90; McCray v. Carlstrom,
38 Cal.Rptr. 45, 226 C.A.2d 272;
Ellis V. Title Ins. & Trust Co.,
38 CalRptr. 605, 227 C.A.2d204.
Evidence held sufiBcient
Scarbery v. Bill Patch Land &
Water Co., 7 Cal.Rptr. 408, 184
C.A.2d 87.

Fla.— J. S. Michael Co. v. Ray-
onier, Inc., App., 212 So.2d 824.



111. — Presbyterian Distribution

Service v. Chicago Nat. Bank,

28 in.App.2d 147, 171 N.E.2d

86.

Ky. — Harper v. Johnson, 294

S.W.2d 928.

La. — Sohio Petroleum Co. v.

Miller, 237 La. 1013, 112 So.2d

695.

Md.— McNally v. Moser, 210

Md. 127, 122 A.2d 555, 60 A.L.R.

2d 388; Messall v. Merlands

Club, Inc., 194 A.2d 793, 232 Md.

666, 194; Phil J. Corp. v. Markle,

249 Md. 718, 241 A.2d 718.

Mass. — Scirpo v. McMillan, 247

N.E.2d 368.

Mo. — Conservative Federal Sav.

and Loan Ass'n v. Warnecke,

App., 324 S.W.2d 471.

Mont. — Turman v. Safeway

Stores, Inc., 132 Mont. 273, 317

P.2d 302.



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Mont.— Hill V. Zuckerman, 138
Mont. 230, 355 P.2d 521, cert,
den. 81 S.Ct. 695, 365 U.S. 813,
5 L.Ed.2d 963.

Nev.— Reno Realty & Inv. Co.
V. Hornstein, 72 Nev. 219, 301
P.2d 1051; Gershenhorn v. Wal-
ter R. Stutz Enterprises, 72 Nev.,
304 P.2d 219, reh. den., 72 Nev.
293, 306 P.2d 121, cert. den. 77
S.Ct. 1382, 354 U.S. 926, 1 L.Ed.
2d 1437; Hotel Last Frontier
Corp. v. Frontier Properties, Inc.,
79 Nev. 392, 385 P.2d 776.
N.Y. — Fulway Corp. v. Liggett
Drug Co., 148 N.Y.S.2d 222, 1
Misc.2d 527.

N.C.— Fairchild Realty Co. v.
Spiegel, Inc., 246 N.C. 458, 98
S.E.2d 871.

Ohio — Scott V. Fayette County
Agr. Soc, App., 164 Ohio St.
528, 136 N.E.2d 85, app.dism.
132 N.E.2d 212, cert den. 77
S.Ct. 36, 352 U.S. 825, 1 L.Ed.
2d 48;

Jaffe V. Patterson Realty Co.,
142 N.E.2d 284, mod. on oth.
grds., App., 133 N.E.2d 655.
OkL—Lewter v. Holder, 348 P.2d
845; Smallwood v. Holder, 348
P.2d 849.

Utah— Russell v. Valentine, 14
Utah 2d 26, 376 P.2d 548.

57.1. U.S. — American Ins. Co. v. Les-
ter, 233 F.2d 778. In fire insur-
ance company's action for declar-
atory judgment as to rights of
defendant mining corporation and
individual defendants to recover
for fire loss of insured coal tipple,
evidence supported jury's spe-
cific findings that corporation's
interest in tipple was seventy per
cent of its actual cash value and
that individual defendants had in-
surable interest in tipple and pro-
cured insurance to protect such
interest, so that court properly
awarded individual defendants
judgment for sum of represent-



ing thirty per cent interest in
tipple.

Alabama Vermiculite Corp. v.
Patterson, 130 F.Supp. 867. In
suit for declaratory judgment as
to the rights and liabilities of the
parties under lease for the min-
ing of vermiculite ore, evidence
established that the lessors had
not complied with the prior or-
der to surrender to the lessee ex-
clusive possession of the leased
premises and cease harassing
lessee's employees and thus in-
terfering with the lessee in the
enjoyment of rights under the
lease. Evidence did not establish
that opening and mining of two
deposits of vermiculite by the
lessee was unreasonable or arbi-
trary.

Gamble-Skogmo v. McNair
Realty Co., 98 F.Supp. 440, aff'd
193 F.2d 876. Where lease of de-
partment store premises gave
lessor right to terminate lease
upon default in payment of rent-
als or percentage of retail sales
due under lease, and controversy
arose as to liability of lessee for
percentages on certain retail
sales, and it was determined that
lessee was in fact liable for per-
centages on such sales, and lessor
had served notice of termination,
court, in exercise of its power
conferred by Montana statute to
relieve party from forfeiture
when such party makes full com-
pensation to the other party,
would relieve lessee from termi-
nation of lease upon payment to
lessor of principal and interest
due and cost of declaratory judg-
ment action.

Ala. — Grimes v. Warren, 262 Ala.
427, 79 So.2d 34. In equitable ac-
tion by trading company as ten-
ant's assignee, against landlord,
and others, to determine parties'
interest in proceeds for peanut



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crop raised by tenant under
agreement whereby landlord was
to receive one-half of crop,
wherein landlord claimed that
tenant did not have one-half in-
terest at time of assignment be-
cause he had previously agreed
to repay landlord from such pro-
ceeds of fertilizer and labor fur-
nished by landlord, evidence was
sufficient to sustain a decree that
proceeds should be divided equal-
ly between company and its de-
fendants.

Spry v. Pruitt, 256 Ala. 341, 54
So.2d 701. In suit for declaratory
relief by lessee against lessor to
determine amount of rent due
under lease of farm lands, evi-
dence sustained finding that there
was a new consideration for
lessor's agreement that rent be
paid by lessee in accordance with
acreage, that acreage of which
lessee was put in possession was
approximately 100 acres and that
tender lessee made to lessor was
sufficient under the terms of the
lease agreement.

Cal. — Owsley v. Hamner, 36 Cal.
2d 710, 227 P.2d 263. In land-
lords* action for declaration of
their right to close passageway
and patio on leased premises ad-
jacent to tenants* storeroom, in-
ference arose that it would be
advantageous that storeroom,
which had entrances and display
window on passageway, receive
some benefit from many cus-
tomers who were obtained from
those passing by entrances and
display windows along the pas-
sageway. Evidence sustained find-
ing that passageway and patio
were reasonably necessary for
beneficial enjoyment of tenants'
storeroom.

Beeler v. Plastic Stamping,
Inc., 144 Cal.App.2d 306, 300 P.2d



852. In action for declaratory re-
lief concerning lands leased to
defendant corporation with op-
tion to purchase them and effect
a certain conveyance thereof,
where defendant husband of
plaintiff, to whom he assigned hib
note and trust deed against lands
in favor of bank in alleged con-
sideration of advances to him by
plaintiff and her parents after
payment of $25,000 due on note
during pendency of action for
specific performance of option,
answered many questions on his
cross-examination with words **I
do not know" and could not
state exactly how much money
he borrowed from plaintiff's par-
ents or exactly when loans were
made, trial court's finding that
they advanced only $25,000 to him
was not unsupported by evidence,
though his, plaintiff's, and her
mother's testimony as to amount
of loan ranged from $160,000
to $178,000. The trial court did
not err in concluding that plain-
tiff's defendant husband's assign-
ment of his note and trust deed
against said lands in bank's favor
and conveyance of lands to plain-
tiff after payment of balance due
on note during pendency of ac-
tion for specific performance of
option were second and subject
to defendant corporation's rights,
in view of testimony that plain-
tiff knew that property was
leased and there was litigation
in reference thereto.

Wommack v. McClure. 139 Cal.
App.2d 641, 294 P.2d 513. In ac-
tion by landlord against tenant
for declaratory relief construing
lease, of garage and service sta-
tion, whereunder it was provided
that garage was to be subleased
and that no liability for rent of
garage would exist unlos preni-



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ises were subleased, and court
found that tenant was liable to
landlord if he refuses to accept
financially solvent ^btenants.
evidence on issue of whether pro-
posed subtenants whom tenant
refused were financially unsound
supported findings adverse to
landlord. Evidence also support-
ed trial court's finding that por-
tion of garage withdrawn from
w ritten lease was leased to tenant
by subsequent lease or agreement
under which tenant was not re-
quired to pay additional rent.

Carter v. Adler, 138 Cal.App.2d
63, 291 P.2d 111. In sqit for a
judgment declaring that a lease
to defendants did not prevent
plaintiffs' landlord from conduct-
ing a super market on the join-
ing parcel for sale of merchan-
dise in the lease to be sold ex-
clusively by the defendants, evi-
dence sustained finding that if
plaintiffs were permitted to con-
duct the super market it would
be in competition with the de-
fendants' market and would re-
sult in a loss of business to de-
fendants in violation of the lease.
Evidence supported finding that
plaintiffs violated their obligation
to defendants in the lease by
which defendants were to have
exclusive rights to sell the speci-
fied merchandise in the market
and that plaintiffs were not to
do anything to depress the sales
of the defendants and thereby
place the plaintiffs in the posi-
tion to cancel the lease.

Penzer v. Wenland, 131 Cal.
App.2d 301, 280 P.2d 489. In
lessor's action against lessee for
declaratory relief and damages,
wherein lessor filed amendment
seeking rent and lessee alleged
that lessor had failed to have



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