166 F.2d 258 (9th Cir. 1948), 11689, Western Union Telegraph Co. v. Hansen & Rowland Corp.

Docket Nº:11689.
Citation:166 F.2d 258
Party Name:WESTERN UNION TELEGRAPH CO. v. HANSEN & ROWLAND CORPORATION.
Case Date:February 18, 1948
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 258

166 F.2d 258 (9th Cir. 1948)

WESTERN UNION TELEGRAPH CO.

v.

HANSEN & ROWLAND CORPORATION.

No. 11689.

United States Court of Appeals, Ninth Circuit.

February 18, 1948

Page 259

Lane Summers, of Seattle, (F. T. Merritt and G. H. Bucey, both of Seattle, Wash., of counsel), for appellant.

Charles T. Peterson and Peterson & Duncan, all of Tacoma, Wash., for appellee.

Before GARRECHT, MATHEWS and HEALY, Circuit Judges.

GARRECHT, Circuit Judge.

The appellee is seeking to recover from the appellant a statutory penalty for unlawful detainer of real property as defined by the laws of the State of Washington.

The facts have been stipulated and are briefly as follows:

The appellee was the owner of certain premises at Tacoma, Washington. Up to and including October 31, 1946, the appellant was the lessee of those premises, in lawful possession thereof under a valid lease as extended.

On July 24, 1946, the appellee sent to the appellant a notice declaring the former's intent to terminate the lease at the end of its term, October 31, 1946.

On September 25, 1946, the appellee sent to the appellant a notice 'requiring' the latter 'to quit and surrender' the premises 'at the expiration of your tenancy on the first day of November, 1946'.

On October 8, 1946, the appellant orally notified the appellee that it was unable to vacate the premises on October 31, 1946, whereupon the appellee orally advised the appellant that $750 per month was 'a reasonable rental value of said premises'.

Thereafter the appellant received a letter, dated October 8, 1946, from the appellee, notifying the appellant that it might continue 'possession for a period not exceeding four months after the expiration of the present lease on the following terms': The appellant was to pay in advance rental at the rate of $1, 500 per month, with the privilege of surrendering the premises at any time during the month after giving the owners ten days' written notice, in which event, upon the appellant's vacating, the unearned part of any month's rental would be refunded.

In that letter, the appellee reiterated that it regarded $750 per month as a 'reasonable rental value' of the premises, and further stated that, because of the necessity of moving one of the appellee's departments to Seattle 'pending the time they can get possession of said premises', there would be an additional cost of at least $750 per month, and 'undoubtedly' more.

On October 30, 1946, the appellant tendered to the appellee as rental for the premises for the month of November, 1946, the sum of $750, accompanying such tender by a letter of the same date, which referred to that amount as 'having been claimed and demanded by your letter of October 8, 1946, as the reasonable monthly rental value of the space above mentioned, which this company is compelled by circumstances to occupy until vacation is possible.'

The appellant received a notice dated November 2, 1946, from the appellee, to the effect 'that you are hereby required to pay the rental of $1500.00, which became due and payable on the 1st day of November, 1946, * * * within three days following the date of service of this notice, or in the alternative, to quit, vacate and surrender' possession. The appellant was unable to vacate the premises.

The appellee suffered no special damages, as alleged in its complaint, or otherwise, and is not entitled to recover therefor.

No rent under the lease as extended was due from the appellant to the appellee on October 31, 1946.

On November 30, 1946, the appellant tendered by letter to the appellee $1, 500 as rental for the months of November and December, 1946, reiterating the statement that such amount had been claimed by the appellee 'as the reasonable rental value', in the appellee's letter of October 8, 1946, supra.

Page 260

On December 28, 1946, the appellant tendered by letter to the appellee $2250, as rental for November and December, 1946, and January, 1947, reiterating the statement referred to in the preceding paragraph.

On January 31, 1947, the appellant tendered by letter to the appellee $3, 000, as rental for November and December, 1946, and January and February, 1947, with the same statement as before.

On February 11, 1947, the appellant filed its answer to the appellee's complaint, and at the same time deposited in the registry of the court below, 'in perpetuation of tenders previously made, the sum of $3000.00.'

On February 28, 1947, the appellant tendered by letter to the appellee $750 as rental for March, 1947, 'and thereafter on the same date' the appellant 'deposited said sum of $750 in the registry of the above entitled court in perpetuation of such tender.' None of the tenders made by the appellant to the appellee were accepted.

At all times material to this case on and after November 1, 1946, the reasonable rental value of the premises was $750 per month.

On March 7, 1947, the appellant surrendered the premises to the appellee.

After removal from the Superior Court of the State of Washington for Pierce County and after joinder of issues in the court below, the cause was presented for adjudication upon the complaint, the answer, the stipulation of facts without any testimony and without a jury.

In its conclusions of law, the lower court stated that the...

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