61 Wash. 74 | Wash. | 1910
This is an action to recover rent alleged to have accrued since July 1, 1909, upon a lease of the basement of the Hotel Wilhard Building, in Seattle. The provisions of the lease necessary for us to notice are the following.
*75 “The lessor agrees to arrange the west basement room, as in its judgment shall be best, for a cafe, and arrange the east room for kitchen and servants’ quarters (it shall not, however, furnish any fixtures, furniture or other equipment), it being understood that in the event it is impracticable to arrange servants’ quarters in the east basement, that would comply with the city ordinances governing in such cases, the space shall be left to be used for such other purposes as the lessees may see fit; the rent to commence from the date the premises are ready-for occupancy.
“Said lessee shall not do or permit to be done anything unlawful in the said premises nor use said premises for any other purpose than that of a cafe, or other incidental purpose connected with the business of running a hotel.”
The complaint alleges that the plaintiff completed the arrangement of the premises as agreed about June 25, 1909, and notified the defendants that the premises were ready for occupancy about June 28, 1909; and that the defendants agreed to accept the premises as of July 1, 1909. The defendants deny their acceptance of the premises.; and allege, in substance, that the premises have not been completed as agreed, that they are unsuitable and unfit for cafe and kitchen purposes, and that the defendants are therefore unable to use them for any purpose contemplated by the lease. The case was tried by the court without a jury, resulting in findings and judgment in the defendants’ favor. The plaintiff has appealed.
The trial court found, in substance, the following: Appellant made certain alterations in the premises, and on June 28, notified respondents that the premises were ready for occupancy; and on July 1, demanded of respondents the payment of the rent for July. On June 28th respondents advised appellant that they would accept the premises on July 1, if the same were in fact ready for occupancy; but that on that day the premises had not been completed, and were unfit for use and respondents refused to accept the same and refused to pay the rent demanded. Rent has been demanded for each month since then and payment refused. The prem
The principal contentions of learned counsel for appellant arise upon exceptions to the court’s finding relating to the failure of appellant to complete the premises as agreed, and upon their exception to the refusal of the court to find, as requested by appellant, to the effect that the premises were completed as agreed and that respondents accepted the premises before July 1. We have carefully read all of the evidence, but will not attempt a detailed review of it here. There was conflict in the evidence as to the proper arrangement and completion of the premises for use as contemplated. We are inclined to agree with the learned trial court, however, that the evidence preponderated in respondents’ favor on this question. There was evidence tending strongly to show that the kitchei. was so arranged and constructed that it was not properly ventilated, and for that reason could not be used as a kitchen. Two city inspectors testified, in substance, that it was not properly ventilated, and for that reason in its present condition a restaurant would not be permitted there by the city authorities. There was also evidence tending to show that the premises -were incomplete in other respects, though this was not of such a serious nature as the want of ventilation. The evidence also fails to show an acceptance of the premises by respondents. We are of the opinion that the findings are fully warranted by the evidence.
It is further contended by counsel for appellant that it is entitled to recover regardless of the fitness of the premises for the purpose respondents intended to use them. In support of this contention counsel invoke the general rule that, upon the demise of premises, there is no implied warranty as to their fitness for the purpose for which they are leased, citing J ones, Landlord and Tenant, § 574, and 24 Cyc. 1047. We have seen that it was not contemplated by either party that this
It is further contended that under the terms of the lease appellant was the sole judge of the sufficiency of the arrangement of the premises it was to make. We are not able to give to the contract this construction. The language is, “The lessor agrees to arrange the west basement room, as in its judgment shall be best, for a cafe, and arrange the east room for kitchen.” It may well be doubted that appellant’s ■judgment can govern as to the kitchen arrangement under this language; but conceding that such is the case, we do not think, in view of this language, together with the prohibition against respondents using the place for any other purpose than that which it was to be arranged for, means that appellant was to be the sole judge of the fitness of it for that purpose. Conceding that its judgment may control as to the manner of doing the work, the plan, and even the means of ventilation, it does not follow that appellant is not obligated to produce the results contemplated, as it is found to have failed in doing.
We conclude that the judgment should be affirmed. It is so ordered.
Rudkin, C. J., Mount, Fullerton, and Gose, JJ., concur.