35 Wash. 138 | Wash. | 1904
Action for unlawful detainer, brought by M. M. Teater, plaintiff and respondent, against Terry King, defendant and appellant, in tbe superior court of King county. Tbe plaintiff recovered judgment, and defendant appeals.
Tbe complaint was filed in tbe clerk’s office of tbe lower court on December 26, 1901. It alleged tbat respondent was, and bad been since May 15, 1901, in possession of lot 1, and tbe north half of lot 4, excepting tbe dwelling bouse situated upon tbe easterly end thereof, in block 32 of O. D. Boren’s Plat of an addition to Seattle, under verbal lease thereof from month to month; tbat on November 23, 1901, tbe respondent sublet to tbe appellant, from month to month, at a rental of $100 per month, payable in advance, tbe storeroom comprising tbe main floor of tbe building, erected upon tbe westerly portion of said lot 1. Tbe complaint further alleged tbe payment by appellant of $100, one month’s rental, on November 23, 1901; tbat, at tbe city of Seattle, on tbe 2nd day of December, 1901, tbe respondent served upon appellant personally a written notice to quit and surrender possession of said premises to respondent on or before Dec. 23, 1901, with which notice appellant refused to comply. Respondent demanded judgment for restitution of tbe premises, and damages.
On tbe day of tbe filing of this complaint, summons and writ of restitution were issued. On tbe 31st day of
The appellant, by his amended answer, filed Jan. 24, 1902, denies the material allegations of the complaint, except the payment of the month’s rent, and the refusal to vacate the premises in question, as -required by the above notice to quit. He specially denies that he unlawfully and wrongfully detained the possession of said premises to respondent’s damage. And for an affirmative defense the answer alleges, that on or about the 23d day of September, 1900, one Mrs. E. J. Dodds, who was rightfully in possession of the property described in the complaint, did, in writing, lease and demise to óne O. M. Spores and one Joseph Gavin, the whole lower or main floor of said building (the storeroom described in the complaint), for the period of two years after that date; that said property was a part of the estate of Mary U. Welch, deceased; that on October 1, 1900, in consideration of the payment of $500 by said Dodds, this lease
(1) The first two assignments of error allege that the trial court erred in overruling appellant’s motions to quash and set aside the writ of restitution and dismiss the action. The record shows that a second summons issued herein, on January 13, 1902, pursuant to the order of the court below of that date, above noted, quashing the original summons and setting aside the service thereof.
(2) The next contention of appellant presents the proposition regarding the sufficiency of the notice to quit possession of the premises in question. The notice was served on appellant on December 2, 1901, requiring him to surrender possession and vacate the premises “on or before December 23, 1901, being the expiration of the current monthly period.” Appellant urges that this notice was not given and served a sufficient length of time prior to the expiration of the tenancy to have terminated it under the statute. We think his position untenable, under the decision of this court in Yester Estate v. Orth, 24 Wash. 483, 64 Pac. 723. See, further, Steffens v. Earl, 11 Vroom 128, 29 Am. Rep. 214, 218. Moreover, it is questionable whether appellant is in a position to question the sufficiency of this notice or its service, when the complaint squarely tendered an issue in that behalf, and appellant not only failed to meet such issue, but alleged right of possession in himself under his affirmative defense. The notice to quit is for the protection of the tenant and may be waived. Dale v. Doddridge, 9 Neb. 138, 1 N. W. 999.
(3) The alleged errors respecting the rulings of the court, in denying appellant’s motion for a nonsuit, and in granting respondent’s application to take the ease from the jury, direct a verdict, and enter judgment in his favor, may be considered together. There was no error in denying the motion for a nonsuit. The respondent was the only witness examined in his own behalf. His testimony tends to support the allegations of his complaint. The chief issue tendered by this pleading was the unlawful detention of the premises in question by appellant. It appeared from this evidence, that on May 15, 1901, one Mrs. P. I.
The evidence introduced in appellant’s behalf at the trial tended to show, that on the 21st of September, 1900, Mrs. R. J. Dodds was lessee of this hotel property, for an indefinite term, from M. M. Oarraher, executor of the Welch estate; that at that date Mrs. Dodds leased, by written indenture, this lower floor (the property in dispute) to O. M. Spores and Joseph Gavin for the term of two years. This lease contained the following provision: “Provided, however, that said party of the first part continues to have the lease or possession of the said property during said term of two years.” Appellant then introduced in evidence the following paper writings:
“Seattle, Washington. September 21st, 1900. In consideration of O. M. Spores and Joseph Gavin entering into a written lease with Mrs. R. J. Dodds for two years for the Russell House in the city of Seattle, it is hereby agreed that in case Mrs. R. J. Dodds should for any reason lose or not have the right to rent said premises so leased to said Spores and Gavin for two years that we, as executors of the estate owning the land described in*145 said lease, will recognize the lease of said Spores and Gavin for said two years provided that said Gavin and said Spores shall perform all their conditions of said lease. (Signed) O. M. Spores. Joseph Gavin. M. M. Oarraher, as executor of the estate of Mary A. Welch, deceased. Pierre P. Perry, attorney for said executor.”
“Seattle, Washington, October 1, 1900. In consideration of the sum of five hundred dollars ($500) to me in hand paid by O. M. Spores and Joseph Gavin, the receipt of which is hereby acknowledged, I hereby release said 0. M. Spores and Joseph Gavin from the certain provision in the lease hereinafter referred to requiring said O. M. Spores and Joseph Gavin to lower the floor of the certain building heretofore leased by me to said O. M. Spores and Joseph Gavin, said lease bearing date September 21, 1900, it being mutually understood and agreed that said payment of said money in no way affects any covenant or conditions in said lease, excepting as hereinbefore provided. Mrs. B. J. Dodds.”
“Deceived from Mrs. B. G. Dodds the above sum of five hundred dollars ($500.00) in consideration of our recognition of the said lease hereinbefore referred to. Dated at Seattle, Washington, this 1st day of October, 1900. M. M. Oarraher, as executor of the estate of Mary M. Welch, deceased. Pierre P. Perry, as attorney for said executors.”
It further appeared that Spores and Gavin, on October 11, 1900, assigned, in writing, their interest in the above lease to the Seattle Brewing and Malting Company, as collateral security for money loaned; that this lease wás recorded June 1, 1901; that Spores and Gavin were running a bath house on this lower floor, at the time respondent entered into possession of the Bussell House property, of which respondent had notice; that thereafter, Teater collected rents from such parties and their successors in interest; that, through certain mesne transfers, appellant, on or about November 14, 1901, became the
“At the time I sold out the house to M. M. Teater, these parties [Spores and Gavin] were still running the bath house, and at the time I sold to Mr. Teater I told him about this lease I had made to Spores and Gavin, and showed Mr. Teater a copy of the lease, and I told Mr. Teater at that time I did not want to have any trouble about it, and that he must protect me on that lease, and he said he would; and at the time I closed up the deal with Mr. M. M. Teater I turned the lease over to him, that I had made to Spores and Gavin.”
M. M. C'arrahér, the executor, swore that respondent “got into possession by buying Mrs. Dodd out.” Witness Jensen, in behalf of appellant, swore that, when the $100 rental was paid by King to Teater, the former said to the latter: “I have come up here to pay you the rent, $100, subject to that lease.” There was further evidence tending to show that Teater took the property designated as the Russell House with knowledge of Spores and Gavin’s lease of the lower floor, subject to the above condition, and that King was the successor in interest of those lessees. True, much of this evidence is vague and inexplicit on the question whether Teater, at the time he bought Mrs. Dodds out, obligated himself to assume the burden of this lease to Spores and Gavin. After a careful reading of the testimony adduced in appellant’s behalf, we think that it tends to sustain the allegations of his answer, and that the learned trial court erred in taking the case from the jury, directing a verdict, and entering judgment for respondent.
The learned counsel for respondent argue that the so-called recognition of the executor could have, at most, only a future contingent operation. This argument, as
We cannot agree with respondent’s contention, that whatever rights appellant may have in the premises can only be enforced in an equitable action. The gravamen of this controversy is the alleged unlawful detention on the part of the appellant. The question of respondent’s recognition of the lease from Mrs. Dodds to Spores and Gavin was one of fact for the consideration of the jury. The evidence in behalf of appellant tended to show that he was not guilty of the unlawful and wrongful detention of this property, as charged in the complaint. The proposition regarding the sufficiency of this evidence, as opposed to the testimony of respondent, was a matter that should have been submitted to the jury. The trial court was not justified in deciding, as a matter of law, that respondent was entitled to recover in the action at bar.
The judgment of the superior court is reversed, and the case is remanded for a new trial.