rpt to rent the p,roperty resultedinelevant consideration insofarcerned.rngthly explanation of the dis-: and others, where net pnofitsis not to be taken as an indica-[heory employed is of general,we know of no other situation[y to produce a different rezultlvocated by the omicus cur'ine.Iowever, that concep,tual think-ications should not so blind usStatute as to produce unauthor-.at was lost due to claimants'opportunity that they would

y to make the property moreWhether they or any one elseuestion that no one can confi-, this was not a loss of p,ropertyrficial coverage of the Act andrreviously expressed by us couldrgement of that coverage.compensable, the claims must

381

CLAIM OF TSURU YOT<OZEKI

tNo. 146-Bb-0322. D€cialett Aprit 80, 19b61

FINDINGS OF T'ACT

I r * * * *

During 1941 the claimant had purchased the leaseholdinterest including furnishings of three apartment houses,namely, the Maxine, the Monterey, and the Silveradoapartments. rr * * The Nlaxine and the Monterevapartments were turned over to a real estate *un"gu*.rrtcompany. * rr * The Silverado apartments, the mostvaluable of the three, were turned over to the claimant,sattorney. rr * * Shortly after being evacuated, theclaimant learned that the Maxine apartments \Mere oper-ating at a net loss each month * rr * and thus to avoidfurther operating losses it wa.s decided that claimantshould transfer her furniture in said apartments * * * tothe real property owner in consideration for the cancella-tion of claimant's further liability under the existingIease. * * 'r

The lVlonterey apartments continued to op,erate at aprofit, during the period of claimant,s exclusion. How_ever, the furniture and furnishings fell into dimepairtfrgugh the negligent operation of the apartments byclaimant's agent who had been retained to manaee thlproperty. Furthermore, the management companylailedto comply with a covenant in claimant,s lease tl makenecessary repairs to the real property. As a result. claim_ant's landlord filed an unlawful detainer action to oust theclaimant for breach of said covenant and for damages tothe real property in the sum of $4,b00. Claimait re_tain-ed her attorney and paid reasonable attorney feesin the sum of $182 to defend this action. On the *drrir"and suggestion of counsel, claimant returned under per_

rpt to rent the p,roperty resultedinelevant consideration insofarcerned.rngthly explanation of the dis-: and others, where net pnofitsis not to be taken as an indica-[heory employed is of general,we know of no other situation[y to produce a different rezultlvocated by the omicus cur'ine.Iowever, that concep,tual think-ications should not so blind usStatute as to produce unauthor-.at was lost due to claimants'opportunity that they would

y to make the property moreWhether they or any one elseuestion that no one can confi-

, this was not a loss of p,ropertyrficial coverage of the Act andrreviously expressed by us couldrgement of that coverage.compensable, the claims must

381

CLAIM OF TSURU YOT<OZEKI

tNo. 146-Bb-0322. D€cialett Aprit 80, 19b61

FINDINGS OF T'ACT

I r * * * *

During 1941 the claimant had purchased the leaseholdinterest including furnishings of three apartment houses,namely, the Maxine, the Monterey, and the Silveradoapartments. rr * * The Nlaxine and the Monterevapartments were turned over to a real estate *un"gu*.rrtcompany. * rr * The Silverado apartments, the mostvaluable of the three, were turned over to the claimant,sattorney. rr * * Shortly after being evacuated, theclaimant learned that the Maxine apartments \Mere oper-ating at a net loss each month * rr * and thus to avoidfurther operating losses it wa.s decided that claimantshould transfer her furniture in said apartments * * * tothe real property owner in consideration for the cancella-tion of claimant's further liability under the existingIease. * * 'r

The lVlonterey apartments continued to op,erate at aprofit, during the period of claimant,s exclusion. How_ever, the furniture and furnishings fell into dimepairtfrgugh the negligent operation of the apartments byclaimant's agent who had been retained to manaee thlproperty. Furthermore, the management companylailedto comply with a covenant in claimant,s lease tl makenecessary repairs to the real property. As a result. claim_ant's landlord filed an unlawful detainer action to oust theclaimant for breach of said covenant and for damages tothe real property in the sum of $4,b00. Claimait re_tain-ed her attorney and paid reasonable attorney feesin the sum of $182 to defend this action. On the *drrir"and suggestion of counsel, claimant returned under per_

382

mit from the WRA to Los Angeles in March 1945 in aneffort to protect her interests and to aid in the defenseof the unlawful detainer action. The claimant and herhusband expended approximately $tZS in making thistrip to Los Angeles. Through negotiations with the la.nd-lord at the time of claimant's return, the law suit wasdismissed and the claimant agreed to surrender her lease-hold interest, together with furniture and furnishings,and thereby sustained a loss in the sum of ffi4,214 whichincludes attorney's fees incurred by claimant and alsothe expenses of travel.

The Silverado apartments, which were left in care ofthe claimant's attorney, operated during the period ofApril 1942 until May L944 at a profit and the propertyat all times remained in good co,ndition. * et n Approx-imately 5 months before the expiration of the claimant'slease, she wrote to her attorney and advised him to ne-gotiate on a so-called option, whereby claimant wasgranted the right of continued occupancy for an additional2-year period at a rental to be agreed on before the expira-tion of the existing term. * n rT The landlord refusedto extend the lease except under an increase of rental.The claimant * * * decided not to continue the opera-tion of the Silverado apartments at the increased rentalinsisted upon by the landlord and commissioned her attorney to sell the furniture and furnishings. tt * n Be-fore an acceptable sale could be made, the lease expiredand it became necessary to sell the furniture and furnish-irgs to the landlord on her terms .,+ n r+. On May 5,1944, claimant sold her furnishings, and her tenancyended on May 3I, L944. Claimant and the lessor at notime came to any agreement on the rent for the optionedterm.

RD"q.SONS T'ON. DECISION

* * * * *

In respect to the Monterey apartments, the evidenceis clear that under claimant's personal operation the land-

lord was entirely satisfied with tlerty and brought the suit for breaonly a,fter the property had beeduring claimant's exclusion. Thtleasehold interest, including the fpayment of damages is compentdonment of the property. Usasrante, p. 55 ; T oshi,chi N akamura, rluiro, ante, p. 298. But it maystronger ground, the willful wragent whose failure to cornply wicaused the landlord to file the dtact by claimant's agent could n<contemplated by the claimant arna,ry expense for which she s.George E. Suzuki, ante,p.363. Tney and also expenditures incunAngeles in an effort to protect hreasonably made for such p'urporsable. Fronk Kiyoshi, Oshima, 'Miyagawa, ante,p.242. The sitreffont to protect property from fwas free to return is like thatSuzuki's case,sapra, to p,ut an etdiscovered after his return in Sepout of his tenant's neglect duringand, as in that case, it is immtshould have occurred after claim

Although the principle is clearlowed for money spent for railwaand lodging (in all $175) in theclaimant and her husband macCenter to Los Angeles and backfurther should be said on the pecunecessitated the journey and wupon which the allowance rests.her legal counsel advised her thatry to get the unlawful detainer r

ls Angeles in March 1945 in anrrests and to aid in the defenseaction. The claimant and herrximately $175 in making thisough negotiations with the land-mnt's return, the law suit wasrt agreed to surrender her lease-yith furniture and furnishings,loss in the sum of. fi4,2l4 whichincurred by claimant and also

nts, which were left in care o'foperated during the period ofL4 at a profit and the propertyoodcondition. * * * Approx-bhe expiration of the claimant's,torney and advised him to ne-rption, whereby claimant wasued occupancy for an additionalr be agreed on before the exp,ira-. * * * The landlord refusedrt under an increase of rental.led not to continue the opera-:tments at the increased rental,lord and commissioned her at-:e and furnishings. {t n rT Be-'uld be made, the lease expiredl sell the furniture and furnish-her terms * * *. On May 5,furnishings, and her tena"ncyClaimant and the lessor at nornt on the rent for the optioned

FOR, DECISION

* * l t

;erey apartments, the evidence.t's personal operation the land-

383

lord was entirely satisfied with the care given the prop-erty and b,rought the suit for breach of covenant to repaironly after the property had been improperly managedduring claimant's exclusion. The suruender of claimant'sleasehold interest, including the furnishings, to avoid thepayment of damages is compensable as a forced aban-donment of the property. Usawke Charlie Yamam,oto,ante,p.55; Toshichi Nakamura, ante, p. 108; Alice Suye-luiro, ante, p. 298. But it may also be supported on astronger ground, the willful wrongdoing of claimant'sagent whose failure to cornply with the terms of the leasecaused the landlord to file the detainer action. Such anact by claimant's agent could not have been reasonablycontemplated by the claimant and caused her extraordi-na,ry expense for u'hich she should be compensated.George E. Suzuki,ante,p.363. The fees paid to her attor-ney and also expenditures incurred in her return to LosAngeles in an effort to protect her interest, having beenreasonably made for such p;urpose, are likewise compen-sable. Fronk Kiyoshi, Osh,imo, ante, p. 24, and MasakiMiyagawa, e,nte, p.242. The situation here of claimant'seffort to protect property from further damage after shewas free to return is like that of the owner's effort inSuzuki's case, s'u,pra, to put an end to termite infestationdiscovered after his return in September 1945, but arisingout of his tenant's neglect during the period of evacuation,and, as in that case, it is immaterial that the da.mageshould have occurred after elaimant's returir.

Although the principle is clear under which loss is al-lowed for money spent for railway travel, taxi fare, food,and lodging (in all $175) in the cource of the trip whichclaimant and her husband made from the RelocationCenter to Los Angeles and back in March 1945, a wordfurther should be said on the peculiar circumstances whichnecessitated the journey and which limit the doctrineupon which the allowa.nce rests. As claimant testified,her legal counsel advised her that she should return andtry to get the unlawful detainer suit settled out of court,

384

and she had no other motive in making the journey. Herhusband accompanied her, presumably to aid in the nego-tiation, since he had a comrnunity interest in the property.The necessary expenses of settiement were, therefore, ,,aloss, incurred to prevent a greater loss." Oshima case,supra. At this time, however, persons of Japanese an-cestry, in the absence of individual exclusion orders, o,fwhich there is no evidence, might have returned to Cali-fornia permanently for the military exclusion orders hadbeen rescinded effective January 2, 194b. But sinceboth claimant and her husband were aliens, their travelwas controlled by the Attorney General's Regulations ofFebruary 5, L942, which were not revoked until December10, L945. Both claimant and her husband received,therefore, a short-term pass from the Relocation CenterOfficer, authorizing departure from March 2 to 80, 194b,"For Relocation Purpose." They later departed per-manently under Alien's Travel Permits, dated August27, L945. The March trip was made solely to protectproperty and the loss of property in the Monterey apart-rnent resulting from claimant's agent's mismanagementand the subsequent legal action brought by the lessor isallowable because the cause which put in train this resultsprang from claimant's evacuation. Fusatwo Isoaaki,ante, p. I93. On this account, it is clearly distinguishablefrom losses on sales made after the claimant was free toreturn, asin Harue Yoshida, ante,p.286; Shuzo Kumano,ante, p. 148 ; George thiino, ante, p. 160.

The net loss on the Maxine Apartment I{ouse has beenallowed without respect to any gain which may havebeen derived by the claimant in the way of rent from theMonterey and Silverado Apartments. The allowance, inother words, has been made without regard to the com-parative net worth of the claimant on her evacuation andon her release from the Relocation Center. Each transac-tion has been viewed separately and by itself. * * r0

No allowance can be made for the claim for the inde-terminate option for two years of the Silverado Apart-

ments * * * since it cannot"property" in the option. Thbut no fixed rent, and obviorclaimant could not have soid idid not constitute an interesrdeprived. Claimant held ov,her tenancy after April 15, 1from rnonth to month, andunder the option. In Emer178 i\{ass. 172 (1901), an em.the question was the validit'only on oral promises and a:under the State Statute of FraC. J., said "The Statute here iin which case it naturally worights of the parties to a contrare interests in rent, good agaiand again, "ft appeared thathabit of renerving the petition.'t * #. Changeable intentionand although no doubt suchpractically to the value of theThey added nothing to thelegal rights are all that mustintentions added to the saleaaddition would represent a qa legal right" (p. 185). An oconditional unilateral contrargiving of notice by the receiverto exercise it and the concurrpurchase price or rental. SeeReu. L, 12. More generallyagreement to keep an offer op,457, and cases there cited. Bby the claimant here to the lela binding obligation on her lesmade an offer to negotiate a"changeable intentions" in I

in making the journey. Herresumably to aid in the nego-mity interest in the property.:ttlement were, therefore, ,,&greater loss." Osh,ima case,rer, persons of Japanese an-lividual exclusion orders, o,fnight have returned to Cali-nilitary exclusion orders hadrnuary 2, 1945. But sinceand were aliens, their travelrey General's Regulations ofnot revoked until Decembermd her husband received.from the Relocation Centerl from March 2 to 30. 1g45.They later departed per-

,vel Permits, dated Augustwas made solely to protecterty in the Monterey apart-rt's agent's mismanagemention brought by the lessor isrhich put in train this resultluation. Fusataro Isozaki.,, it is clearly distinguishable;er the claimant was free to',nte, p. 286 ; Shuao Kuman o,nte,p.160.Apartment I{ouse has beenany gain which may havein the way of rent from thetments. The allowance, inwithout regard to the com-nant on her evacuation andbion Center. Each transac-rly and by itself. rr ++ rrfor the claim for the inde-,rs of the Silverado Apart-

385

ments * r$ {+ since it cannot be said that she lost any"property" in the option. The "option,,had a fixed termbut no fixed rent, and obviously in these circumstancesclaimant could not have sold it to anyone else. * it ri Itdid not constitute an interest in land of which she wasdeprived. Claimant held over until May 81, 1944, buther tenancy after April 15, L944, was a tenancy at will,from rnonth to month, and not a tenancy for 2 yearsunder the option. In Emery v. Boston Terminal Co.,178 Nlass. 172 (1901), an eminent dornain case in whichthe question was the validity of a lease renewal basedonly on oral p'romises and an a,fter-made memorandumunder the State Statute of Frauds, the Court, per Holmes,C. J., said "The Statute here is not dealing with promises,in which case it naturally wouid be directed only to therights of the parties to a contract, but with estates, whichare interestsinrem, good against all the world,' (p. 1gB);and again, "It appeared that the owners had been in thehabit of renerving the petitioners, lease from time to time* * t. Changeable intentions are not an interest in land.and although no doubt such intentions may have addedpractically to the value of the petitioners, holding * * *.They added nothing to the tenants, legal riglrts, andlegal rights are all that must be paid for. Even if suchintentions added to the saleable value of the iease, theaddition would represent a speculation on a chance, nota legal right" (p. 185). An option has been said to be aconditional unilateral contract, the conditions being thegiving of notice by the receiver of the option that he wishesto exercise it and the concurrent payment by him of thepurchase price or rental. See Langdell in 1g Ha,ru. LawReu. L, L2. ilIore generally it has been helcl a bindingagreement to keep an o{Ter open. See 18 Haru. Law Reu.457 , and cases there cited. But under either view noticeby the claimant here to the lessor would not have createda binding obligation on her lessor. The lessor had merelymade an offer to negotiate a bilateral contract. Just as"changeable intentions" in Emery's case, supra, could

H

386

not, because of the Statute of Frauds, create an interest

in tuna, the lessor's offer here to negotiate a further lease

would not have conferred on the claimant lessee any prop-

erty right for which claima'nt could have obtained a pnice

in ihelarXet' The claimant"s unenforceable right' like

the lessee's in Emerg's case' would "represent a specula-

tion on a chance, not a legal right'" The Act compensates

o"iy fo. "property" lost by evacuation or exclusion' No

ior, .urt U" atio*ea, therefore, for this so-called option'

;throuber Ione (

woulof alof ce1945the :fruitThetmensaidtakewhirerlyleasrlesfharto f tbreltheanCCotoffit o lvalam

386

not, because of the Statute of Frauds, create an interestin tuna, the lessor's offer here to negotiate a further leasewould not have conferred on the claimant lessee any prop-erty right for which claima'nt could have obtained a pnicein ihelarXet' The claimant"s unenforceable right' likethe lessee's in Emerg's case' would "represent a specula-tion on a chance, not a legal right'" The Act compensateso"iy fo. "property" lost by evacuation or exclusion' Noior, .urt U" atio*ea, therefore, for this so-called option'

;throuber Ione (

woulof alof ce1945the :fruitThetmensaidtakewhirerlyleasrlesfharto f tbreltheanCCotoffit o lvalam