I concur in the order of reversal but am persuaded that judgment should be entered for defendant. Whether the location of the premises is within the confines of “Little Tokio” or near the precincts of that ghost town is immaterial. Certainly we “know” that it is within the general area where Japanese in 1940 did congregate, maintain mercantile establishments and operate hotels. Why should not the courts take notice of that which is visible to any one who walks or drives upon the streets of Los Angeles in the area in question?
Defendant is of Japanese ancestry. In the prosecution of a war by the United States with the Island Kingdom, the commander in chief of the armed forces, in the lawful execution of his duties ordered defendant and all others of the same status to remove from the coastal cities to interior points where they are held in concentration, virtual prisoners of the army. Such was an unanticipated circumstance and it has made performance of his obligations as lessee “vitally different from what should reasonably have been within the contemplation of both parties when they entered into the contract.” (6 Williston on Contracts, Rev. ed., p. 5410.) If the parties never in fact agreed upon their mutual rights and obligations in the event they should be forced into such a crisis upon what principle may a court decree that they did so agree? Clearly the situation is far different from that existing at the making of the contract. Then there was an “equality between two opposing considerations,” viz: the *195building of plaintiff and the rentals of defendant. Such equality has been violently disturbed by an authority beyond the control of either by reason of an event that neither could have anticipated. Defendant is now detained with those who would, have been his patrons in a remote quarter. In such a situation the enforcement of the lease would impose enormous burdens upon him, so enormous that their fulfillment appears well nigh impossible, (Blair’s Breach of Contract Due to War, by Paxton Blair, New York, 1940.) The very fact that its enforcement would be extremely onerous to defendant is apparent from the facts recited as well as from the insistence of plaintiffs that defendant operate the lease by remote control. If the terms of the lease were as easy of performance by defendant as they were in February 1940, surely plaintiffs would not squander their time in seeking a decree to compel his performance, for others would to a reasonable certainty be ready to occupy the premises on equivalent terms. The lease was that of a hotel and office building to a person of Japanese origin in a community where people of his blood congregated and transacted business among themselves, where transient Japanese sought accommodations and where Japanese business men established offices. From the very nature of the lease and the surrounding circumstances the parties from the beginning must have known that it could not have been carried out by defendant unless during the term of the lease the presence of the Japanese colony in Southern California continued. They must have contemplated such continuous presence of that group as the basis for the operation of his business by defendant. Therefore, we must read into the lease the implied condition that the parties shall be excused in case performance without the default of either party becomes impossible because of the disappearance of those conditions which at first made the lease desirable (Straus v. Kazemekas, 100 Conn. 581 [124 A. 234, 238]; Johnson v. Atkins, 53 Cal. App. 2d 430, 432 [127 P.2d 1027]). Had the current war and the exclusion of the Japanese from Los Angeles been envisaged by these litigants it cannot be doubted that they would have expressly covenanted that the lease should terminate on the day of the exclusion order by the military authorities.
Without the slightest token of bad faith, defendant now finds himself frustrated, unable to fulfill his obligations and *196should be relieved by the judgment of this court. (Johnson v. Atkins, supra.)
A petition for a rehearing was denied May 6, 1943, and respondents’ petition for a hearing by the Supreme Court was denied June 10, 1943.