77 P. 434 | Idaho | 1904
On the twenty-third day of August, 1901, the plaintiff and defendant entered into a written agreement of lease, whereby the plaintiff let to the defendant a cold storage building in the city of Kendrick, Latah county, for a period of one year. It was agreed that in addition to doing certain work and making certain improvements the lessee should pay the sum of $300 as rental for the premises; $100 to be paid on or before the fifteenth day of September, 1901, and $200 on or before the fifteenth day of January, 1902. Defendant, the lessee, entered into possession of the premises and paid the first installment of rent but failed to malee the payment which fell due January 15, 1902. After the defendant made default in the payment of rent, and on the eighteenth day of January,
Defendant prepared and had settled his statement and bill of ■exceptions and thereafter moved for a new trial, and has appealed from the judgment and the order denying his motion for a new trial.
In the first place it is contended that the notice served by plaintiff upon defendant for the payment of rent or delivery of possession is not a sufficient notice under sections 5093 and 5094, Revised Statutes. We have carefully examined the notice and compared it with the requirements of those provisions, and are satisfied from such examination that it is a sufficient and substantial compliance therewith. The notice is as follows:
*78 “To L. A. Porter, Tenant in Possession:
“You are hereby required to pay the rent of the premises hereinafter described, and which you now hold possession of, amounting to the sum of two hundred dollars, being the amount now due and owing to me by you as the balance of the rent due for the term from the first day of September, A. D. 1901, until the first day of September, 1902, or deliver up possession of the same to me, or I shall institute legal proceedings against you to recover possession of said premises, with treble rent.
“Said premises are situated in the Town of Kendrick, Latah County, Idaho, and are described as follows:
“All that certain brick storage house situate in block B, Addison’s addition to the town of Kendrick, Idaho, designated and known as ‘Hunter’s Cold Storage.’
“Dated at Kendrick, Idaho, January 18, A. D. 1902.
“Respectfully,
(Signed) “LEWIS HUNTER.”
The next and most serious contention urged by appellant is that this action could not be maintained under the express terms of the lease and the statutes applicable thereto until a thirty days’ notice had first been given notifying the tenant of the lessor’s intention to exercise his option to terminate such lease, and thereafter, and upon the expiration of the thirty days’ notice, the service of a further notice of three days to quit and surrender the premises. This position rests upon the following provision found in the lease: “And it is further covenanted that if said payments of rent or either of them, whether the same be demanded or not, are not paid when they come due, or if said leased premises be appropriated to any other purpose or use than as herein specified, except by written consent, or waste of any kind shall be made or committed thereon, or if any part of said demised premises be underlet without the consent of the said first party, as herein provided, or if this lease assigned by act of the said second party or by operation of law, or if said party of the second part shall fail or neglect to perform any of the covenants by him to be kept and performed, there said party of the first part shall have the right, at his option (and such right is hereby expressly reserved by him) to termin
It is argued by the appellant that since the lessor has -never served a thirty days’ notice in the exercise of this option to terminate the lease and has in fact never terminated the lease under that option reserved to himself in the lease, that the tenant was therefore in possession by the permission of his landlord; and that the service of the thirty days’ notice could not operate as a withdrawal of such permission and convert him into an unlawful detainer. The respondent, on the other hand, urges that this stipulation did not take from the landlord his right to pursue the statutory remedy in ease of a default in payment of rent, and that even though the tenant failed to pay the rent when due, the landlord was not obliged to exercise his option to terminate the lease unless he should see fit so to do. In other words, he contends that the lessor might pursue the statutory remedy and leave the lessee to the exercise of his statutory privilege of paying the rent due and thereby saving the lease from lapse or forfeiture. Plaintiff contends that if he chose not to exercise his option and to be more lenient in this respect toward the lessee than he might have been, that the lessee had no right of complaint.
We are unable to see wherein this stipulation is in any way violated by the landlord pursuing his statutory remedy as he has done in this ease. In such a proceeding as this it is not contended that the lease is terminated, and it is not upon that theory that such an action founded upon failure to pay rent is prosecuted. Here the landlord seeks primarily to secure payment of the rent due, and, as an alternative, in case the rent is-not paid, to secure possession of the premises. The law has provided that the tenant cannot retain the rental value of the premises and also the possession of the premises after completion of the service of the statutory notice. It should be observed that the stipulation over which this controversy arose
The other questions argued upon this appeal present to - our minds an unusual and novel situation in the matter of practice and procedure; and this is accentuated by the fact that the party who urges them is the lessee. No objection was made by the plaintiff in the lower court to the consideration of the cross-complaint, nor was any question raised as to defendant’s right to introduce his evidence in support thereof. The plaintiff, however, succeeded upon the trial as to all the issues raised and defendant has appealed. In this court the plaintiff, who is respondent here, argues as one of the reasons why the judgment should be sustained that under the statute and decisions of the courts the defendant had no right to be heard either upon a counterclaim or cross-complaint in the lower court, and that therefore whatever error might have been committed against the defendant in the introduction of evidence on his cross-complaint or as to the findings of the court thereon, cannot become ■grounds of reversal in .this court. The appellant has neither raised nor argued the point in this court that the plaintiff in the lower court having neglected to present these objections there, cannot be heard to urge them here. If the plaintiff had lost in the lower court and were the appellant here we should certainly not permit him to raise this question for the first time in this court on appeal; and, indeed, if the consideration of that issue here could result in prejudicing the defendant in any manner,
Chapter 4 of title 3 of the Code of Civil Procedure, Revised Statutes of 1887, treats exclusively of forcible entry and unlawful detainer and the remedies therefor. The title to that chapter is: “Summary Proceedings for Obtaining Possession of Real Property.” A study of the various provisions of this chapter of nineteen sections satisfies us that it was the purpose of the legislature to provide a summary method whereby a landlord might collect his rent, or, in default thereof, obtain possession of his property. The statute requires that both the complaint and the answer shall be verified, and section 5102 provides that “If, at the time appointed, the defendant do not appear and defend, the court must enter his default and render judgment in favor of the plaintiff as prayed for in the complaint.” This section seems to only contemplate a defense to the charge of forcible or unlawful detainer and does not appear to provide for the defendant seeking affirmative relief or becoming a cross-actor in such action. Section 5106 provides the character of judgment that may be entered and the manner and method of enforcing the same; and every provision of that section looks to the trial of only one issue, namely, whether the defendant is either a forcible or unlawful detainer of the premises. To allow the issue of unliquidated damages growing out of an independent covenant contained in the lease and made by the lessor to be set up either by way of cross-complaint or counterclaim in such an action would frustrate the purposes and object of the statute, and, at the same time, give the tenant
In Ralph v. Lomer, 3 Wash. 401, 38 Pac. 763, the same court said.: “We have been cited to no eases holding that, in an action for an unlawful detainer, a counterclaim or setoff is admissible. On the contrary, the courts seem to entertain the oppo
These cases have both been approved and followed in Owens v. Swanton, 25 Wash. 112, 65 Pac. 921, and Carmack v. Drum, 27 Wash. 382, 67 Pac. 808. In Owens v. Swanton the supreme court approved the action of the trial court in sustaining a demurrer to a cross-complaint in a similar ease. The same doctrine seems to have been maintained in California by a uniform line of authorities from Warburton v. Doble, 38 Cal. 619, down to Moroney v. Hellings, 110 Cal. 219, 42 Pac. 560. In McSloy v. Ryan, 27 Mich. 109, Judge Cooley says: “The defendant offered evidence to show that complainant had not performed his covenants in the lease in regard to improvements and repair. As these covenants were independent of the covenant to pay rent, and this proceeding was not one in which, even if the amount of rent was in issue, there could be any deduction of offsets, or by way of recoupment, the court did not err in rejecting this evidence.”
Appellant contends that under sections 4183 and 4184, Revised Statutes, Stevens v. Home Savings etc. Assn., 5 Idaho, 741, 51 Pac. 779, 986, and Murphy v. Russell, 8 Idaho, 151, 67 Pac. 427, it was not only his legal right, but his duty, to present his cross-complaint in this case, and have it litigated in this action, and that by failure to do so he would have lost his remedy. He also admits that, in an action of this kind, there cannot properly be any counterclaim. In his reply brief he says: “The matters set forth in the cross-complaint are not counterclaims. What claim is it possible to ‘counter’ against an unlawful act of any nature — whether it be an ‘unlawful’ detainer, an ‘unlawful’ assault, an ‘unlawful’ battery, an ‘unlawful’ attempt to murder, an ‘unlawful’ libel or slander? It is readily seen that it is absolutely impossible to have a counterclaim to an unlawful act, hence the matters set up in the cross-complaint are not counterclaims.”
In this case where there was only one plaintiff and one defendant, if the facts here pleaded could not be set up by way of counterclaim, we fail to see how the same facts could be pleaded by calling them a cross-complaint. The scope of plead
Aside from the fact that the legislature have provided by the unlawful detainer act a summary remedy which they did not mean to be subject to the same defenses, counterclaims and cross-actions as ordinary litigation, such a defense as the one here' interposed does not, strictly ■ speaking, “arise out of the transaction set forth in the complaint.” A tenant does not become primarily an unlawful detainer upon breach of the covenant in the lease to pay rent, but rather upon failure to pay after demand by a legal notice in the statutory time. This constitutes him “an unlawful detainer” of the premises; this he would never become but for service of the notice, although he should never pay rent. Indeed, the landlord might forego this remedy and maintain his action on the contract for the payment of rent. It cannot truly be said that a breach of a covenant by the landlord to improve or repair the demised premises aiises out of or is connected with a failure to pay rent after service of notice to pay or surrender possession. A breach of a covenant made by the landlord does not result in making him guilty of an “unlawful” act in the same sense that a tenant becomes guilty of “unlawful detainer” upon failure to pay rent-after notice. A claim for unliquidated damages arising out of
The lease pleaded by the cross-complaint was for a "cold storage” building in the town of Kendrick, which was in course of construction at the time the lease was executed, and was to be completed in "as short time as possible” thereafter. The premises were described as "The cold storage building now in course of construction, on lots 1 and 2 of block ‘B’ in Addison’s addition to the town of Kendrick, Idaho, and known as the Hunter Cold Storage House.” The lease also contains this provision: "The party of the second part agrees that he will use said cold storage building only for the purpose of handling fruit and produce, and not for hay, grain or feed.” Appellant maintains that these various designations and references to the demised premises as a "cold storage building,” read in connection with the stipulation that the premises should not be used by the tenant except for the handling of fruit and produce, from which hay, grain and feed were excluded, is an implied warranty that the building when completed should be such a structure as would be suitable for the storage and preservation of fruits at all times during the year for which it was let. We are of the opinion that the appellant is correct in this contention. It is clear to us from an examination of the instrument itself that the lessor knew and understood the purpose for which the lessee was securing the premises; and not only that, but by the terms of his lease he restricted and confined the lessee to the use of the premises for those purposes only. At the time this agreement of lease was entered into the building was not completed, and was therefore not in a condition that the tenant could enter and examine the same to ascertain whether it met all the requirements for which he was leasing it. On the other hand, the landlord by the implied terms of the lease represented the
This was more than a location and designation of the property and amounted to a representation as to its character,
The judgment for rents and costs and possession of the property described therein will be affirmed and the defendant will not be barred by the findings of the trial court from litigating, in an independent action, any claim-he may have for damages. Under all the facts and circumstances of this case as disclosed by the record, each party will be required to pay one-half of the total costs incurred by reason of this appeal.
