Barrett v. Monro

• Decision Date: 26 June 1912
• Citation: 69 Wash. 229,124 P. 369
• Parties: BARRETT v. MONRO et al.
• Court: Washington Supreme Court

124 P. 369

69 Wash. 229

BARRETT v. MONRO et al.

Supreme Court of Washington

June 26, 1912

Department 1. Appeal from Superior Court, King County; King Dykeman Judge.

Action by Mary W. Barrett against Ellen S. H. Monro and others. From the judgment, defendants appeal. Reversed and remanded, with directions to dismiss.

Revelle Revelle & Revelle, H. R. Clise, and C. K. Poe, all of Seattle, for appellants.

John D Diel and Foster & Worthington, all of Seattle, for respondent.

CROW J.

There is no serious dispute as to the facts in this action. On April 15, 1909, defendants' predecessors in interest, as landlords, executed and delivered to plaintiff's predecessor in interest, as tenant, a five-year lease upon an apartment house in the city of Seattle for a rental of $36,000, payable from the 1st to the 5th of each month in advance installments of $600 each. At the commencement of the term the lessee made the first payment and also deposited with the lessors the sum of $1,200, relative to which the lease contained the following material stipulations: 'Party of the second part hereby agrees at the time of the execution of this lease to pay to the parties of the first part the sum of twelve hundred ($1,200) dollars, which sum shall be held by the parties of the first part to indemnify them against any loss or damage which they may sustain by reason of any violation on the part of the party of the second part of the terms, covenants and agreements contained in this lease as liquidated damages. If said party of the second part faithfully performs and complies with all the conditions, stipulations and agreements contained in this lease on his part to be performed, then the parties of the first part agree to apply said twelve hundred ($1,200) dollars in payment of the monthly rental due for the last two months of the part of this lease.' Defendants have succeeded to all rights and liabilities of the original lessors, and plaintiff has succeeded to all rights and liabilities of the original lessee. All monthly installments of rent were paid until December 6, 1910, at which time plaintiff made default. On December 6, 1910, defendants as lessors served upon plaintiff as lessee the statutory three-day notice to pay rent or surrender the premises. Plaintiff continued in default. On December 10, 1910, the lessors commenced an action of unlawful detainder, and obtained a writ of restitution. Thereupon the lessee surrendered the premises and commenced this action to recover the $1,200 deposit. Defendants as lessors asserted their right to retain the $1,200 in satisfaction of their liquidated damages as agreed in the lease, while plaintiff insisted that the deposit was made as security for payment of rent only, and not to satisfy liquidated damages. The trial court held with plaintiff, found she was liable for 10 days' rent in December, 1910, deducted the same from the deposit, and entered judgment in her favor for $1,000, interest and costs. The defendants have appealed.

The question before us is whether the deposit was to be applied in payment of appellants' liquidated damages. We hold that it was. Respondent contends that the deposit was to secure payment of the monthly installments of rent as they matured; that appellants themselves terminated the lease that thereafter they were entitled to no rent; that they resumed possession; that they succeeded to the occupancy and use of the property; and that they cannot retain possession and appropriate the $1,200 as liquidated damages. Respondent's position leads to the conclusion that she as lessee would be entitled to remain in possession without payment of rent until her defaults amounted to a sum equal to the $1,200 deposit, and that appellants would be required to permit such default without terminating the tenancy, as they could apply the deposit in satisfaction of the delinquent rent. This construction would read into the lease a stipulation which it does not contain. Had appellants thus applied the deposit, and had the default continued until it was exhausted, they would have been without...