Greve v. Leger, Ltd.

415 P.2d 824, 64 Cal. 2d 853, 52 Cal. Rptr. 9, 1966 Cal. LEXIS 320
CourtCalifornia Supreme Court
DecidedJuly 14, 1966
DocketSac. No. 7573
StatusPublished
Cited by17 cases

This text of 415 P.2d 824 (Greve v. Leger, Ltd.) is published on Counsel Stack Legal Research, covering California Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Greve v. Leger, Ltd., 415 P.2d 824, 64 Cal. 2d 853, 52 Cal. Rptr. 9, 1966 Cal. LEXIS 320 (Cal. 1966).

Opinion

TOBRINER, J.

-The present case involves the attempt by a corporate purchaser of premises licensed for the sale of alcoholic beverages to avoid the obligation it assumed in giving the seller an option to repurchase the licenses in the event of the purchaser’s default on its undertaking to buy the premises. The purchaser urges the sole defense that Business and Professions Code section 24076 forbade its agreement to such an option and hence nullified the obligation it assumed. For the reasons set forth below, we have concluded that the statute affords the purchaser no such defense.

Plaintiffs seek relief from a judgment of dismissal following the sustaining of a general demurrer to their complaint without leave to amend. In that complaint plaintiffs alleged that the parties had concluded an agreement for the sale to Leger, Limited (hereafter defendant) of a hotel owned by the plaintiffs together with its liquor licenses. Plaintiffs further alleged that the parties subsequently entered into another written agreement by which defendant bound itself to keep the licenses on the premises and to refrain from selling them to third parties until it had performed its obligations to plaintiffs under the contract for sale of the hotel. Defendant also gave to plaintiffs [856]*856an option to repurchase the licenses for $5,000, the price paid by defendant to plaintiffs for the licenses. The agreement provided that plaintiffs could exercise the option only in the event defendant defaulted on its undertaking to purchase the hotel.1

Upon defendant’s default on that undertaking, plaintiffs repossessed the hotel and tendered to defendant the price specified in the option for the repurchase of the licenses. When defendant refused the tender plaintiffs commenced the present action, seeking to enjoin defendant from selling the licenses to a third party and to compel defendant to transfer the licenses to them. At oral argument before the District Court of Appeal, counsel indicated that defendant had in fact sold the licenses to third parties. Accordingly, plaintiffs now ask leave to amend their complaint in order to seek damages for defendant's wrongful acts.

Defendant does not deny that it gave the option or that the condition precedent contained in it has transpired. Neither does defendant deny that it refused plaintiffs’ tender of the option price. Defendant instead contends that section 24076 of the Business and Professions Code invalidates the very cession of the option and any obligation incident to it. As a second ground of defense defendant claims that since more than 90 days elapsed between the grant and the repudiation of the option, the agreement violates another portion of section 24076 of the Business and Professions Code. We consider each of the contentions seriatim.

In relevant part section 24076 provides that: “No licensee shall enter into any agreement wherein he pledges the transfer of his license as security . . . for the fulfillment of any agreement.”2 Ambiguity and vagueness enshroud both the word “pledge” and the phrase “security for the fulfillment of any agreement” as used in the statute.

[857]*857A literal rendition of the word “pledge” produces an internal inconsistency in the statute. The sole distinguishing characteristic of a “pledge” is the present physical transfer of the property pledged. (Civ. Code, §§ 2986-2988; Black’s Law Dictionary (3d ed.) p. 1368; Brewster v. Hartley (1869) 37 Cal. 15, 25 [99 Am.Dec. 237]; Estate of Wittenberg (1962) 202 Cal.App.2d 867, 874 [21 Cal.Rptr. 258].) If the word bears that meaning in section 24076, the phrase “pledges the transfer of his license” becomes a contradiction in terms. Moreover, a statute prohibiting the pledge of liquor licenses would be largely redundant since Business and Professions Code section 24046 precludes the physical removal of licenses from the licensed premises.

Faced with these anomalies, the courts have concluded that the statute cannot sustain a literal interpretation and that the word “pledge” must be regarded in its colloquial rather than its legal sense. (Elmquist v. Lock (1961) 194 Cal.App.2d 372, 376 [15 Cal.Rptr. 447]; Citrigno v. Williams (1958) 255 F.2d 675, 678-679.) In the absence of a more plausible interpretation of this language and in order to give effect to the section, we are compelled to accept this reading of “pledge” as embracing all promises or undertakings.

Ascertainment of the meaning to be ascribed to the second statutory phrase, “as security for the fulfillment of any agreement,” presents an even more trying task. We start, at least, with certain basic premises. Ordinarily, holders of alcoholic beverage licenses may freely contract to transfer those licenses to other persons, subject, of course, to official approval of the transfer. Such contracts are valid and specifically enforcible. (Bus. & Prof. Code, § 24070; Bell’Isle v. Hempy (1962) 206 Cal.App.2d 14, 16 [23 Cal.Rptr. 599]; Golden v. State of California (1955) 133 Cal.App.2d 640, 644 [285 P.2d 49]; Saso v. Furtado (1951) 104 Cal.App.2d 759, 769-770 [232 P.2d 583].) Obviously section 24076 undertakes to qualify this otherwise unlimited contractual freedom to transfer licenses by prohibiting contracts for such transfers which afford “security” to one of the parties.

Defendant asks that in this context we give the word “security” an expanded and uncommon connotation wide enough to invalidate the instant contract. Yet, as we shall explain, we find no good reason to believe that the Legislature intended to forsake the more restricted and accepted understanding of “security” in favor of defendant’s suggested extraordinary version.

[858]*858In traditional usage, a “security” device is one which entitles the secured party to ownership of some specified fund or asset in the event the security-giver defaults on an underlying obligation. Such devices do not ordinarily contemplate that the secured party must give further substantial consideration in order to enforce his right to the “security.” Moreover, foreclosure upon the “security” normally provides the secured party with an asset or fund out of which to satisfy his underlying claim against the security-giver. (See Black’s Law Dictionary (3d ed.) p. 1595.) This traditional concept of “security” would not embrace an option exercisable only upon payment of substantial additional consideration. Nor would it extend to an option which, upon performance, gives the option-holder no asset out of which to satisfy his underlying claim against the option-giver.

The word “security” may, however, be stretched to cover a far more extensive domain so that its boundaries include any agreement whose value to the parties is specially enhanced by the context in which it occurs. Whenever the performance of some undertaking is necessary to 1 ‘ secure ’ ’ or preserve the value of some asset or some other agreement, we could possibly refer to the undertaking as one that has been given ‘ ‘ as security.

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Bluebook (online)
415 P.2d 824, 64 Cal. 2d 853, 52 Cal. Rptr. 9, 1966 Cal. LEXIS 320, Counsel Stack Legal Research, https://law.counselstack.com/opinion/greve-v-leger-ltd-cal-1966.