Archer v. Archer Blower & Pipe Co.

• Court: Washington Supreme Court
• Writing for the Court: SIMPSON, Justice.
• Citation: Archer v. Archer Blower & Pipe Co., 32 Wn.2d 246, 201 P.2d 191 (Wash. 1948)
• Decision Date: 30 December 1948
• Docket Number: 30655.
• Parties: ARCHER v. ARCHER BLOWER & PIPE CO. et al.

201 P.2d 191

32 Wn.2d 246

ARCHER v. ARCHER BLOWER & PIPE CO. et al.

No. 30655.

Supreme Court of Washington

December 30, 1948

Department 2

Rehearing Denied Feb. 8, 1949.

Action for unlawful detainer by Lena Dalpe Archer, individually and as executrix of the last will and testament of Alfred Charles Archer, deceased, against Archer Blower & Pipe Company, a corporation, wherein Charles R. McLean filed a complaint in intervention. From a judgment for the plaintiff, the corporation appeals.

Judgment affirmed.

Appeal from Superior Court, King County; Robert M Jones, judge.

Bell McNeil & Bowles and George W. Martin, all of Seattle, for appellant.

John J Kennett and James D. McCutcheon, Jr., both of Seattle, for respondent.

SIMPSON Justice.

There is presented for our review a judgment for plaintiff in an action for unlawful detainer, in which plaintiff demanded possession of real property and double rent for a short period of time. The complaint filed December 12, 1947, alleged that defendant, Archer Blower & Pipe Co., a corporation, was in possession of certain real property owned by plaintiff; that defendants had refused to pay the agreed rental of two hundred dollars per month after having been served with a three-day 'notice to pay rent or vacate.' Defendant filed an answer in which it denied the title of plaintiff to the property, and made certain defenses in the nature of set-offs, and also set up the defense that the title was vested in defendant corporation by virtue of an agreement that had been entered into between Alfred Charles Archer and Charles R. McLean. The reply put in issue the allegations of the answer. Charles R. McLean was allowed to file his complaint in intervention. It is not necessary to make any statement concerning the contents of the complaint in intervention because this appeal does not affect Mr. McLean.

The case tried to the court resulted in a judgment in favor of plaintiff. Defendant corporation then appealed to this court.

Appellant's brief on appeal contains eight assignments of error which, as suggested by counsel for appellant, may be considered by the discussion of three questions. These questions are: (1) Did the trial court err in its refusal to grant a nonsuit? (2) Was there error in the holding of the court that the evidence establishing an agreement between Charles R. McLean and Alfred Charles Archer was inadmissible? (3) Did the court commit error in refusing the appellant the opportunity to prove a setoff as against the rent due?

This is a companion case to that of McLean v. Archer, 201 P.2d 184, filed this day. The instant case and the one just mentioned were consolidated for trial but were considered independently of each other, except that any relevant testimony which was introduced in the McLean v. Archer case was considered as introduced in the present case.

It is our opinion that the evidence considered by the court was sufficient to warrant the denial of a motion for nonsuit. In addition to the facts set out in our former opinion, the proof showed the agreed and reasonable rental of the property to be two hundred dollars per month; that it had not been paid; that proper notice had been given, and that the title to the property was in respondent.

The question relating to proof of the oral agreement as between McLean and Archer is no different from that considered in our prior opinion except that appellant here makes the claim that respondent waived the provisions of Rem.Rev.Stat. § 1211. This last contention is based upon the fact that respondent attempted to prove that a rent agreement existed in connection with the use of the property involved by introducing a resolution contained in the minute book of the corporation. The resolution was as follows:

'It is, therefore, hereby resolved that the salary of the president be and it is hereby fixed at $600.00 per month effective as of January 1, 1941, and that the rental to be paid by this corporation to Alfred C. Archer for the use of the premises occupied and used by it shall be and it is hereby fixed at $200.00 per month effective as of January 1, 1941; and

'Be it further resolved, that these resolutions concerning the president's salary and the rental to be paid shall remain in full force and effect until otherwise ordered by this Board.' Appellants cite as sustaining authority for their contention Robertson v. O'Neill, 67 Wash. 121, 120 P. 884; Floe v. Anderson, 124 Wash. 438, 214 P. 827; Johnston v. Medina Improvement Club, 10 Wash.2d 44, 116 P.2d 272; and, Miller v. O'Brien, 17 Wash.2d 753, 137 P.2d 525. These cases hold, and properly so, that the provision of Rem.Rev.Stat. § 1211, may be waived by one entitled to its protection by introducing certain evidence concerning a transaction with a person since deceased. The evidence constituting a waiver must, however, relate to the subject matter in controversy. Here the resolution introduced in evidence was passed at a corporation directors meeting in June, 1941, over four years Before the alleged agreement between McLean and Archer. Moreover, it had nothing whatever to do with any contract or

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