Fritz v. Riggs , 91 Or. 268 ( 1919 )

McBRIDE, C. J.

1. As will be observed from the foregoing statement, the right to terminate the lease was conditioned upon the happening of a particular contingency, namely: Such a change in the laws of Oregon, or the ordinances of the City of Portland, as should prevent the sale of liquor in the precinct where the leased premises were situated.

There was no change made in the laws of the state, or in the ordinances of the city, during the time for which defendant claimed the right to recover rent, and the sale of liquor in the precinct was not prohibited by law or ordinance. The plaintiffs asked for a renewal of their license but it was refused by the mayor and council on the ground that the building was situated so near one of the public bridges across the Willamette Eiver that it would be against public policy to permit a saloon to be operated at that point. The sum and substance of plaintiffs’ contention is, that having been refused a license it became impossible for them to carry on the business for which the building was leased, and that they are therefore within the cancellation clause before recited. While the situation of plaintiffs is unfortunate the court cannot afford them relief. To do so would be to make for the parties a contract different from that which they themselves have executed. It is well settled by numerous decisions that the failure to obtain a license, or the failure to secure the renewal of a license, to sell liquors will not authorize the cancellation of a lease in cases such as the present: Burke v. San Francisco Breweries, 21 Cal. App. 198 (131 Pac. 83); Gaston v. Gordon, 208 Mass. 265 (94 N. E. 307); Burgett v. Loeb, 43 Ind. App. 657 (88 N. E. 346); Goodrum Tobacco Co. v. Potts Thompson Liquor Co., 133 Ga. 776 (66 S. E. 1081, 26 L. R. A. (N. S.) 498); Lawrence v. White, 131 Ga. 840 (63 S. E. 631, 15 Ann. Cas. 1097, and notes, 19 L. R. A. (N. S.) 966).

Many other decisions might be cited to the same effect, but it is sufficient to observe that the vast weight of authorities coincides with the views expressed in those above enumerated. In this view of the case consideration of the other questions presented becomes unimportant and the decree is affirmed.

Affirmed.

Benson, Harris and Burnett, JJ., concur.