49 Wash. 649 | Wash. | 1908
On the 8th day of June, 1904, Joseph Sthay and wife were the owners of the lot involved in this action,
The complaint alleged a letting by the plaintiff to the defendants from month to month, notice to quit, and a refusal on the part of the defendants to surrender possession. The answer denied the tenancy as alleged, admitted service of notice to quit, and a refusal to surrender possession, and set forth affirmatively the rights and claims of the defendants under the lease from Sthay and the assignments thereof. The reply denied that the defendants were holding under the Sthay lease as alleged, and attacked the validity of the lease itself on the ground that the leasehold premises were the community property of Sthay and wife; that the wife did not join in the lease or assent thereto or acquiesce therein; that the lease was not recorded, and that the plaintiff was a purchaser without notice. On these issues the case was tried, and from a judgment in favor of the plaintiff, the present appeal is prosecuted.
The refusal of the court to strike the affirmative matter from the reply is the first error assigned. In support of their motion the appellants maintain that, since the reply denied that they were holding under the Sthay lease, the validity or invalidity of that lease became immaterial. The plea that the appellants were in possession under a different lease from that set forth in the complaint was a mere argumentative denial of the allegations of the complaint, and added nothing to the denial already contained in the answer.
The second assignment is that the court erred in denying a motion for nonsuit at the close of the respondent’s case. The appellants did not stand on their motion, and we have repeatedly held that such motions are waived by proceeding with the trial, and that the case will thereafter be reviewed on the entire testimony only. After the denial of the nonsuit the trial proceeded principally on the issues presented by the affirmative answer and the reply. Under instructions from the court, which are free from objection, the jury found that the property in controversy was the community property of Sthay and wife, that the lease was executed by the husband alone, and that the wife had not authorized, assented to, or acquiesced in the lease. The lease was therefore invalid, and the lessees became tenants from month to month, such being the rent periods. Watkins v. Balch, 41 Wash. 310, 83 Pac. 321, 3 L. R. A., N. S., 852; Dorman v. Plowman, 41 Wash. 477, 83 Pac. 322. The month to month tenancy was terminated by the notice to quit, whether it was the tenancy described in the complaint or the tenancy under the void lease as found by the jury.
The objections to testimony and to the charge of the court are nearly all based on the ground that the testimony and instructions were not applicable to the issues presented by the complaint. But as already said, they were applicable to the issues presented by the affirmative answer, and whether these issues were properly or improperly brought into the case the appellants will not be heard to complain.
This disposes of all the assignments, and finding no prejudicial error in the record, the judgment is affirmed.
Hadley, C. J., Fullerton, Root, Mount, Crow, and Dunbar, JJ., concur.