3 Wash. 401 | Wash. | 1891
The opinion of the court was delivered by
On August 13, 1888, the respondent and his wife, who died before the commencement of this action, demised to appellant the premises in controversy
“ And it is agreed that if any rent shall be due and unpaid, or if default shall be made in any of the covenants herein contained, then it shall be lawful for the said party of the first part to reenter the said premises, and to remove all persons therefrom, the party of the second part hereby waiving any notice to quit, or of intention to reenter ; and the parties of the first part covenant that the said party of the second part, on paying the monthly rent and performing the covenants aforesaid, shall and may peaceably and quietly have, hold and enjoy the said demised premises for the term aforesaid.”
Appellant took possession of the premises described in the lease at or about the date thereof, and paid the rent, though rarely, if ever, on the day it became due, up to February 1,1890. On that day appellant being still in possession and failing to pay the rent then due, respondent served upon him the following notice in writing :
“ To Gregory A. Lomer and Elizabeth Lomer: You, and each of you, are hereby notified that the rent for lots 27, 28, 29 and 30, in block 708,togetherwith thebuildings situated thereon, and all being situated in the city of Tacoma, county of Pierce, State of Washington, was due on the 1st day of February, A. D. 1890, and is still unpaid. And you, and each of you, are hereby further notified that unless the said rent is paid within ten days from the date of the service of this notice upon you, your tenancy will be forfeited thereto, as provided by the statutes of the said State of Washington. — Jacob Ralph, by John Evans, Atty.”
Payment not having been made within the following ten days, respondent, on February 13, 1890, commenced this
Before the trial, the defendant, appellant here, appearing specially, moved the court to dismiss the action on the ground that the court had no jurisdiction of the person of the defendant, for the reason that no legal summons had been served upon him. The motion was denied by the court, and exception taken. And this ruling of the court is the first error assigned.
The objections to the summons are, that it does not require the defendant to appear in any court known or existing in the state, and that it does not conform in some other respects to the provisions of the law applicable thereto. The court is therein designated as “ The superior court of the State of Washington, for the county of Pierce, holding terms at Tacoma,” and it is claimed that there is no such court, but that the proper appellation should have been, “ The superior court of Pierce county.” If it were conceded that the contention of the learned counsel for appellant is correct, we think the requirement of the statute was substantially complied with in that regard. We fail to see how the defendant could possibly have been prejudiced or in any manner misled by the designation of the court. There was but one superior court of ox for the county of Pierce, and the defendant must have known thatfact. And while we would not hesitate to declare a summons void which should radically fail to conform to the requirements of law, we do not feel inclined to hold that slight variances, which cannot be prejudicial in effect, are fatal. Moreover, it must be remembered that the form of the
The next objection of appellant is, that the court erred in sustaining the demurrer to defendant’s “ further and second” defense in his amended answer. This defense consists of an allegation that the defendant, on the 12th day of February, 1890, and before the commencement of this action, offered and tendered the sum of $425 to the National Bank of Commerce, of Tacoma, at its banking house in the city of Tacoma, during its banking hours, as and for the rent of the said premises for the month of February, 1890, in accord and with the provisions of the said lease, and that the said bank then and there refused to accept the same, and that he has ever since ’ been and now is ready and willing to pay the said rent in accordance with the terms of said lease. The objections to the plea were: (1) That the offer to pay was too late to bar a forfeiture; (2) that the amount was not sufficient; and (3) that the allegation did not set forth a good plea of tender. It has been observed that, by the terms of the lease, the sum of $425 became due and payable at the bank named on the first day of February, on which day the money was demanded of defendant, but was not paid or offered to be paid by him. The notice served on the defendant on that day informed him that the rent was then due, and unless paid within ten days from the date of service, the tenancy would be forfeited, as provided by the statutes of the state. No attempt was made to pay the rent during the ten days, as is shown by the answer itself. Section 2056 of the Code of Washington provides that “ when a tenant fails to pay rent, when the same is due, and the landlord notifies him to
“ The common sense of the rule is, that if the plaintiff demands what he is entitled to, in language easily understood, it is sufficient. ' The neglect and refusal to pay the rent due after demand put an end to defendant’s right of further occupancy under his contract,”
It is also claimed that the court erred in excluding evidence offered in support of the third defense set up in
It may be remarked, in passing, that it is difficult to determine the exact attitude of the defendant in this case, from the allegations of the answer, taken as a whole. He first denies that he has not paid the rent due February 1, 1890. He then alleges that he offered to pay it, and is still ready and willing to pay it; and that since March 1, 1889, he has been deprived of the beneficial use and enjoyment of every part of the premises in dispute. Notwithstanding these allegations, the fact was that, at the time of the trial, the defendant was still in possession, and was vigorously endeavoring to keep his landlord out. Now an eviction must be either actual or constructive. There is no claim that the defendant was physically expelled from the premises, and we fail to see that the acts pleaded amount to a constructive eviction. As a general rule, the acts of the landlord, in order to amount to a constructive eviction of his tenant, must be such a physical interference with the possession of the tenant, under color of right, as to deprive him of the beneficial enjoyment of the demised premises, in consequence of which he abandons the same. We find no clearer statement of the law upon this question than that made by Endicott, J., in DeWitt v. Pierson, 112 Mass. 10; 17 Am. Rep. 58, which is as follows:
“ It is well settled in this commonwealth, that to constitute an eviction there must be either a physical ouster of the tenant by the landlord, or some act done by him on the premises, with the intent of depriving the tenant of the enjoyment and occupation of the whole or part of the same, to which the tenant yields the possession, within a reasonable time, and in either case the rent is suspended.”
The proposed second amended answer set up "substantially the same facts which were pleaded in the amended answer filed, together with a counter claim for damages on account of loss of business, depreciation of the value of furniture purchased for use in one of the buildings on the leased premises occupied by appellant as a lodging house, and for repairs and other expenses. We deem it more objectionable than the one filed. We have been cited to no case holding that, in an action for an unlawful detainer, a counter claim or setoff is admissible. On the contrary, the courts seem to entertain the opposite doctrine generally
It is further contended that there is a defect of parties plaintiff in this action. But it does not appear from the record that the objection was made in the court below either by demurrer or answer, and it cannot be raised here for the first time. Code, § 81; Pomeroy’s Remedial Rights and Remedies, § 207. And besides, it was alleged in the complaint that the lessor Margaretha Ralph, wife of respondent, died testate, and that respondent was her sole legatee. This was proved hy the will which was introduced in evidence, together with undisputed testimony that she died without issue. This oral testimony, however, was objected to on the ground that the decree of the probate court was the only competent testimony by which that fact could be established. The will was drawn in accordance with the provisions of § 1443 of the Code of Washington, and specially provided that decedent’s estate should be settled without the intervention of the probate court, after the will had been properly admitted to probate. By the terms of the will, respondent was not only made the sole residuary legatee, but was appointed executor of the estate as well. And it is difficult to perceive what more could be required in order to make him the sole party in interest. It is familiar law, that a tenant, before the expiration of his term, and while in the possession under his lease, will not be heard to deny the title of his landlord to the demised premises; and where one of two joint lessors dies it has been held that the right of action survives to the other, and does not pass to the personal representative of the deceased lessor. Salisbury v. Shirley, 66 Cal. 224; Fesmire v. Brock, 25 Ark. 20; Pomeroy on Remedial Rights
It is further contended by appellant, that the complaint fails to state a cause of action, but we think the objection is untenable. It states everything requisite in an action of this kind. Nor do we think that the court abused its discretion in permitting plaintiff to amend the prayer of his complaint during the trial.
There being no substantial error in the record, the judgment of the court below must he affirmed, and it is so ordered.
Hoyt, Stiles, Dunbar and Scott, JJ., concur.