Western Union Telegraph Co. v. Hansen & Rowland Corp.

• Citation: 166 F.2d 258
• Decision Date: 18 February 1948
• Docket Number: No. 11689.,11689.
• Parties: WESTERN UNION TELEGRAPH CO. v. HANSEN & ROWLAND CORPORATION.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

166 F.2d 258 (1948)

WESTERN UNION TELEGRAPH CO. v. HANSEN & ROWLAND CORPORATION.

No. 11689.

Circuit Court of Appeals, Ninth Circuit.

February 18, 1948.

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 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, and the stipulation of facts without any testimony and without a jury.

In its conclusions of law, the lower court stated that the appellant wrongfully detained the premises from the appellee from November 1, 1946, to March 7, 1947, inclusive; that the reasonable rental value was $750 per month, or a total of $3,175; and that by reason of such wrongful detainer, the appellee was entitled to a judgment for double the amount of the rental during that period, or $6,350, with costs. Judgment was rendered accordingly, and from that judgment the present appeal was taken.

We agree with the appellant that the single problem to be determined here "is whether during its disputed occupancy beginning November 1st, 1946, and ending March 7, 1947, the appellant was a trespasser under the penalty of subsection (1) § 812 Remington's Revised Statutes of Washington, or a tenant by sufferance under the protection of § 10621" of the same compilation. There was no other type of tenancy possible under the facts of this case; no tertium quid.

We will dispose of the second proposition first.

1. The Appellant Was Not a Tenant by Sufferance

Section 10621 of Rem.Rev.Stat. reads as follows:

"Tenancy by sufferance. Whenever any person obtains possession of premises without the consent of the owner or other person having the right to give said possession, he shall be deemed a tenant by sufferance merely, and shall be liable to pay reasonable rent for the actual time he occupied the premises, and shall forthwith on demand surrender his said possession to the owner or person who had the right of possession before said entry, and all his right to possession of said premises shall terminate immediately upon said demand." Emphasis supplied.

Since the record is clear that the appellant acquired possession by virtue of a valid lease, and therefore with the consent of the owner, the appellant seeks to avoid the force of the verb "obtains" by resorting to certain secondary meanings given to the word in Webster's New International Dictionary, 2d Ed., page 1682. Some of the meanings contended for by the appellant are applicable to the verb "obtain" only when used in an intransitive sense, such as "to be prevalent or general, as the custom obtains", whereas the verb is used transitively in § 10621, supra. The other definitions of the word in a transitive sense given by Webster's — in addition to the primary meaning — do indeed convey the idea of "to hold, to keep, or to possess," as claimed by the appellant; but every one of such definitions is qualified by Webster's with the designation "Obsolete", "a Latinism", "Archaic" or "Now Rare".

The primary meaning of the transitive verb "to obtain" as given by Webster's Dictionary is as follows: "To get hold of by effort; to gain possession of; to procure; to acquire, in any way; as, to obtain one's ends, wealth, another's confidence."

Without indulging in a disquisition on the niceties of grammar and semantics, we need say merely that it is not to be supposed that the legislature of Washington intended to use so simple and familiar a word as "obtains" in an obsolete, rare, archaic, or exotic sense.

It is true that there is language in Davis v. Jones, 15 Wash.2d 572, 574, 131 P.2d 430, when read in the light of the facts of that case, which might indicate that the court intended to hold that tenancy by sufferance could come into being with the consent of the rightful owner.

However, that may be, the later case of Najewitz v. Seattle, 21 Wash.2d 656, 658, 152 P.2d 722, apparently overlooked by counsel, sets the matter at rest. There the amended complaint recited that the city of Seattle employed the plaintiff as watchman and caretaker of certain property, and "particularly employed plaintiff to move from said city into said house upon said tract of land." Nine years later, certain persons acting under the orders of the city engineer, ordered the plaintiff off of the property. In affirming the lower court's action in sustaining a demurrer to the complaint, the Supreme Court of the State used the following language:

"We think it is clear that the amended complaint, stripped of conclusions and argumentative allegations, merely sets up an agreement for the occupancy of real property. All declarations and conclusions to the contrary cannot change the legal relationship of the parties established by the ultimate facts alleged.

"The legal effect of the agreement pleaded created the relationship of landlord and tenant, not that of employer and employee. In its simple and ultimate aspect, it was an agreement whereby plaintiff was permitted to occupy the house on the property in consideration of his services in taking care of and keeping the property in repair.

"The tenancy created was for an indefinite term. It was not a tenancy from month to month however in...