130 Wash. 154 | Wash. | 1924
On September 8, 1919, one Lonie Fong leased to Joe Chung and L. S. Choi some forty-acres of land in Yakima county for a period of five years commencing on the 1st day of January, 1920, at a rental of $1,000 per annum, $300 to be paid on July 1st and $700 on October 1st of each year. Water assessments against the land were to be paid by the lessees. At the end of the season of 1920, Choi surrendered his interest in the lease to Chung, who continued to cultivate the land in 1921, planting twenty-five acres to potatoes, ten acres to sug’ar beets, and about two acres to garden products. When the July payment of rental came due, Chung did not pay the rental, and on July 14th the Louie Fong Company, which had succeeded to the interest of Louie Fong, served upon him a notice to pay the rent and the water charges, or vacate the premises. On July 19, the rent not then having been paid, the Louie Fong Company began an action of unlawful detainer and caused a writ of restitution to be issued which was served on Chung on the 20th day of July, 1921. On July 25,1921, Chung remaining in possession, the sheriff dispossessed him, putting his personal property in the road adjacent to the premises. Thereafter, on August 5, 1921, Chung tendered to Louie Fong Company the full amount due for rent and water charges on the land. On the same day a motion to quash the summons and writ of restitution was made by the defendant, and on August 6,1921, the Louie Fong Company, as plaintiff, confessed the motion and upon that date caused a new summons and a new writ of restitution to be issued in the action.
Thereafter and on June 7, 1922, Chung brought the present action against the Louie Pong Company, a corporation, and Louie Pong and the Fidelity & Deposit Company of Maryland, a corporation, to recover the damages which he claimed he had sustained by reason of the unlawful eviction from the premises. The amended complaint, upon which the action was tried, sets forth two causes of action; one for damages in the sum of $11,965.20 for losses which he had sustained in the year 1921 by reason of the eviction, and the second in the sum of $4,500 damages for the loss of the lease for the years 1922,1923 and 1924. The defendants for answer denied the material allegations of the complaint, and set up five affirmative defenses. The first of the .affirmative defenses is that, prior to the issuance of the writ of restitution, Chung and Choi had forfeited the lease by failure to pay rental; the second, that Choi
At the conclusion of the evidence, the court withdrew from the consideration of the jury the claim of damages as set forth in plaintiff’s second cause of action for loss of the rental value of the premises for the years 1922,1923 and 1921, and withdrew also the first four affirmative defenses set forth in the defendant’s answer, leaving the fifth affirmative defense and counterclaim for the jury’s consideration. Special interrogatories were submitted to the jury, which were answered as follows:
Interrogatory No. 1. Do you find the plaintiff suffered any damages from the loss of the crop of sugar beets ?
Answer: Yes.
Interrogatory No. 2. State the amount.
Answer: $165.
Interrogatory No. 3. What value do you find the dwelling house built by plaintiff oh the premises?
Answer: $250.
The appellants first contend that the trial court was in error in allowing a recovery for the value of the house built upon the leased premises by the respondent. It appeared that, by the terms of the lease, the lessees were to “construct and erect such buildings and improvements upon said premises as they may desire to construct for their convenient use thereof during said term, and at the end of said term shall have the privilege of removing such improvements from said premises as they may place thereon.” Under these conditions of the lease, the house, as between the landlord and the tenant, did not become a part of the land, and the rule is that the right of a tenant to remove a building from leased premises is not terminated by summary proceedings which result in the tenant’s dispossession. Miller v. Hennessy, 47 Misc. Rep. 403, 94 N. Y. Supp. 563. There was, therefore, no conversion of the house by the wrongful ejectment, and recovery cannot be had without a showing of subsequent conversion, of which there is nothing in the present record. However, the admission of the evidence in regard to the value of the house is not reversible error. Inasmuch as the jury, under the special interrogatories propounded, found its value, the verdict can be corrected by merely deducting the value.
The second contention is that the trial court erred in permitting the evidence as to what the crop would have
The third contention is that the court erred in permitting one C. Eeinig to testify as an expert. Mr. Eeinig testified that he had seen the crop in question on two or three occasions, and that he had had experience in estimating the value of potato crops, although he had never actually raised potatoes or assisted in harvesting them. But a witness is not disqualified because he had never actually participated in or performed the work of raising and harvesting crops of the nature concerning which he testifies. “It is not necessary that the witness’ knowledge of the fact to which he testifies should have been obtained in any particular manner.” 40 Cyc. 2195. His want of experience was proper to be shown to affect the weight of his testimony, but it was not a ground for excluding it entirely.
The fourth contention is that the court erred in taking from the jury the first four of the affirmative defenses. The first and second of these defenses were issues in the forcible entry and detainer action, and are concluded by the judgment in that case.
‘ ‘ The very object the legislature had in view in enacting the statute under which the appellants were proceeding was to afford a summary and adequate remedy for obtaining possession of premises withheld by tenants in violation of the covenants of their lease, and this object would he entirely frustrated if tenants were permitted to interpose every defense usual or permissible in ordinary actions at law. The statute prescribes that a tenant is guilty of unlawful detainer, after default in the payment of rent pursuant to the lease or agreement under which the property is held, and three days’ notice, in writing, requiring its payment or possession of the property, shall have been served upon him. Laws 1891, p. 180. And when these facts are made to appear to the satisfaction of the court or jury upon the trial, the landlord is entitled to judgment for restitution of the premises, and also to judgment declaring the forfeiture of such lease or agreement, together with damages and the rent found due. In such proceedings counterclaims and offsets are not available. Ralph v. Lomer, 3 Wash. 401 (28 Pac. 760); Warburton v. Doble, 38 Cal. 619; Kelley v. Teague, 63 Cal. 68; McSloy v. Ryan, 27 Mich. 110; Abrams v. Watson, 59 Ala. 524; People v. Walton, 2 Thompson & C. 533.”
Since the counterclaim for damages was inadmissible in the former action, that action does not constitute an adjudication of the question of damages, and no reservation of the question was necessary to make it available in this action.
The fourth of the defenses could only he a defense to the plaintiff’s second cause of action, and since that
The sixth contention is that the court erred in giving that part of instruction No. 3 wherein he told the jury that the respondent is entitled to recover at least nominal damages on the first cause of action. There are courts which maintain the rule that a tenant in an action for damages for a wrongful eviction is entitled to nominal damages in any ease. Schienle v. Eckels, 227 Pa. St. 305, 76 Atl. 15. But conceding that our holdings are to the contrary, the fact that the jury returned substantial damages leaves the error without pertinence.
The seventh contention is that the court erred in instructing the jury to the effect that the respondent was entitled to the expense which he reasonably incurred in moving from the premises, and to the damages he suffered through loss of time. In case of wrongful eviction, the tenant is entitled to recover all the damages which reasonably resulted to him from the landlord’s wrongful act. In the case of Wade v. Herndl, 127 Wis. 544, 107 N. W. 4, 5 L. R. A. (N. S.) 855, where the act of the landlord resulted in the eviction of a tenant, expenses incurred by the tenant in moving and loss of time on account of the removal were held proper elements of damage. We agree with the principle there announced and hold that the instruction in this instance was proper.
The eighth contention is that the evidence shows that the damages awarded were excessive and purely speculative. The verdict on its face does seem large, but an examination of the record shows that it was well within the evidence. Since the trial court refused to interfere with it, we do not feel called upon so to do.
Por the error noticed, the judgment is modified with instructions to deduct $250 from the verdict and enter a judgment for the remainder.