Arnold-Evans Co. v. Hardung

• Decision Date: 09 January 1925
• Docket Number: 18740.
• Citation: 232 P. 290,132 Wash. 426
• Court: Washington Supreme Court
• Parties: ARNOLD-EVANS CO. v. HARDUNG et al.

232 P. 290

132 Wash. 426

ARNOLD-EVANS CO. v. HARDUNG et al.

No. 18740.

Supreme Court of Washington

January 9, 1925

Department 1.

Appeal from Superior Court, Spokane County; Blake, Judge.

Action by the Arnold-Evans Company against J. A. Hardung and W. E Bonza and wife. From part of judgment denying defendants Bonza a judgment over against defendant Hardung, they appeal. Affirmed.

Pemberton J., dissenting.

Corkery & Corkery, of Spokane, for appellants.

Davis Heil & Davis, of Spokane, for respondent.

TOLMAN, J.

The appellants, Bonza and wife, became the tenants of respondent Hardung April 1, 1922, occupying under an oral lease an apartment house in the city of Spokane, known as the Blackstone Apartments, for which they paid $300 monthly as rental. Later they entered into a written lease of the premises for the term of one year from the 15th day of October, 1922, for a total rental of $3,000, all paid in advance, with an option to renew for an additional year at $275 per month, to be paid monthly in advance. The provisions of the lease with reference to repairs, read:

'And it is hereby agreed that the parties of the second part are to maintain and keep said building in good repair and return same at the expiration of this lease to the party of the first part, its heirs, administrators or assigns in as good condition as at the present time, excepting that first party will make repairs to the exterior of premises occasioned by reasonable use and wear thereof.'

Attached to the lease as a rider, or indorsed thereon, was the following provision signed by both parties:

'It is further agreed in the foregoing lease that in the event that said premises shall be destroyed by fire or that second parties are unable to occupy the said premises on account of fire, that the unearned portion of the money deposited for the first year's rent shall be refunded to the second party by the first party and that the second party shall have a lien upon any insurance money payable on account of such fire or destruction on account of fire for the payment of said sum and in the event that any portion of said premises cannot be occupied or that the said second party shall be dispossessed of said premises before the expiration of the first year's lease by the act of the first party or by process of law without the fault or neglect of the second party that then the unearned portion of said payment shall be refunded to the second party.'

Early on the morning of January 2, 1923, the boiler of the heating plant in the leased building was found to be leaking badly, and on examination it was found that the bottom of the boiler had rusted out, so that it was beyond repair, and that a new boiler was absolutely necessary. The building was then occupied by guests and tenants who required heat for their comfort and well-being, and something had to be done immediately. Appellant Bonza wired the landlord respondent, who was a nonresident, advising him somewhat as to the situation, and without awaiting any reply to his telegram ordered a new boiler installed by the plaintiff at an expense of $939.25. Not having been paid therefore, the plaintiff brought this action against both the owner and the tenant for the price of the installation of the new boiler. The tenants Bonza cross-complained against the landlord, Hardung, asking in effect that, if they were held liable to the plaintiff, they might have judgment over against Hardung. The case was tried to the court sitting without a jury, resulting in a judgment in favor of the plaintiff, and against the appellants Bonza only, for the full amount claimed, and denying appellants any recovery from Hardung on their cross-complaint. From that part of the judgment denying appellants a judgment over against Hardung, the defendants and cross-complainants, Bonza and wife, have appealed.

Appellants urge and the evidence tends to show that this was not an ordinary repair, since it was testified that with proper care the new boiler would last practically a lifetime, and authorities are cited which distinguish between repairs and renewals or replacements. But as we read the covenant it is not simply a covenant to make ordinary repairs. The words, 'to maintain and keep said building in good repair and return same at the expiration of this lease to the party of the first part, * * * in as good condition as at the present time, excepting that first party will make repairs to the exterior of premises occasioned by reasonable use and wear thereof,' when construed as a whole, and effect given to every part, seem beyond cavil to bear only the meaning which the trial court evidently ascribed to them.

'It is the well settled common-law rule that a...