Bernard v. Triangle Music Co., 27507.

• Decision Date: 24 October 1939
• Docket Number: 27507.
• Citation: 95 P.2d 43,1 Wn.2d 41
• Parties: BERNARD et ux. v. TRIANGLE MUSIC CO.
• Court: Washington Supreme Court

95 P.2d 43

1 Wn.2d 41

BERNARD et ux. v. TRIANGLE MUSIC CO.

No. 27507.

Supreme Court of Washington

October 24, 1939

Department 1.

Action in unlawful detainer by Edward G. Bernard and wife against the Triangle Music Company. Judgment for plaintiffs, and defendant appeals.

Order to dismiss action.

Appeal from Superior Court, Yakima County; Robert J. Willis, judge.

Roberts Swanson & Tunstall, of Yakima, for appellant.

J. P Tonkoff, of Yakima, for respondents.

ROBINSON Justice.

This is an action in unlawful detainer.

The complaint alleged, in substance, that, in August, 1936, by an instrument attached as an exhibit and incorporated by reference, R. E. and Jasper G. Mikkelson leased to Triangle Music Company a certain storeroom in Yakima, therein described; that, on September 19, 1938, the lessors sold the property to the plaintiffs and assigned the lease; that it was provided in the lease that, if the lessee should fail to pay any installment of the rental when due, after ten day's written notice to make good the default, the lessors might, at their option cancel the lease and reenter, in which event the two months' rental paid upon the execution of the lease should become the property of the lessors as liquidated damages for the breach; that the defendant failed to pay the installment due on or Before January 2, 1939, and the plaintiffs, on January 16, 1939, served a notice to pay or vacate; that more than ten days had elapsed and no payment had been made, nor had the defendant vacated the premises. The plaintiffs prayed for a judgment for double the amount of the January rent, the forfeiture of the last two months' rental paid at the time the lease was made, costs, including attorney's fees in the sum of $250, an order of restitution, and such other relief as to the court might seem just and equitable.

A purported copy of the complaint was served upon the defendant on January 28th. The original was filed in the clerk's office on January 28th, but was not verified until the following February 7th.

The defendant served and filed its answer on January 31st putting the plaintiffs on proof by denying all of the allegations of the complaint, except as admitted or qualified by an affirmative defense. In such defense, it admitted the execution of the lease, its assignment to the plaintiffs, that the copy attached to the complaint was correct, the service of the notice to quit or pay rent, and that it had continued in possession. It set up affirmatively that it had been willing and ready to pay the rentals stipulated in said lease, but did not know to whom to pay them, and that both Walter V. Swanson, one of plaintiffs' attorneys, and J. A. Alexander, father of Mrs. Bernard, had demanded payment, the latter exhibiting what purported to be written authority. Defendant further set up that it was able and willing to pay the monthly rental, and had deposited the rental for the month of January, $135, with the clerk, and would continue to make such deposits, when due, until the controversy should be determined. Upon this answer, the defendant prayed that the action be dismissed, and that it have judgment for costs, including an attorney's fee of $250. The prayer for an attorney's fee, by each of the parties to the action, is based upon paragraph 13 of the lease: 'In any suit or action that may arise out of this agreement, the reasonable attorneys' fees of the successful party thereto shall be a part of the costs of suit and collectible in the same manner.'

At the trial, plaintiffs put in evidence the deed from the Mikkelsons, the original lease, the assignment, the notice to quit or pay rent, and an affidavit showing that the notice was served on January 16th. They then called Mr. Preisz, president of the defendant corporation, and procured an admission that the January rent had not been paid prior to January 26th at least, the witness, however, stating that he had tried to pay it on January 23rd. His evidence closed with the following:

'Q. The Triangle Music Company is now in possession of the premises? A. Yes.

'Q. And you refuse to give them to the landlord, do you? A. Yes.

'Q. The answer is yes? A. I said, yes, we refuse to give it up.'

Whereupon, the plaintiffs, after calling the attention of the court to the provision in the lease regarding attorney's fees, rested their case. Defendant called J. A. Alexander, father of Mrs. Bernard, who testified that his daughter purchased the premises in September, 1938, and that he was authorized to collect the rent. At this point, plaintiffs' counsel objected, on the ground that the defendant was attempting to interpose an equitable defense, and contended that only legal defenses are admissible in an unlawful detainer action. After extended argument, the trial judge announced that he would hear the evidence, but would reserve ruling on that point.

The substance of the testimony offered by defendant was as follows: Mrs. Preisz testified that Mr. Alexander came to the store on January 20th, 21st, or 22nd, and stated that he had a letter from his daughter, Mrs. Bernard, authorizing the defendant to pay the rent to no one but him. 'Then he--I asked him if he would object if Mr. Preisz saw the letter, if he would bring it in at some future time. He agreed; said yes, he thought he could. I said to him at the time, 'Will you notify Mr. Swanson or shall I?' 'No,' he said, 'I'll take care of it; I'll talk to Mr. Swanson.''

Mr. Preisz testified that the incident happened on the 20th, and that he went up to Mr. Alexander's house to see the letter on the 21st, and that he copied a portion of it, including the date, which was January 12th. A subpoena duces tecum had been issued to Mr. Alexander requiring him to produce the letter. He testified that he had mislaid it. He did testify, however: 'Q. Do you remember when Mr. Preisz came up to read that letter up to your house? A. Yes.

'Q. Do you remember if Mr. Preisz copied a part of that letter? A. Yes.

'Q. Do you remember if it read something like this: 'So if Preisz or anyone else is now making payments on our loan, we want this changed. We want him to make payments to you. If you would like us to write him to this effect we will do so'? A. I think that is verbatim.'

He further testified: 'A. Yes, I told his wife that I would be in to--that's what I went in for that day. I told her I'd be in to get the rent; then, when Mr. Preisz was out, I told him I'd be in to collect the rents.'

On January 23rd, the defendant wrote the following letter to Mrs. Bernard at her New York address:

'Dear Mrs. Bernard:

'We have experienced some difficulty in determining to whom we are to pay rental on our store located at 18 South 2nd Street, in Yakima, of which we are informed, you are now owner.

'We went into detail after the deal had consummated, with your father Mr. J. A. Alexander, and he informed us we were to pay all rentals to him. Almost immediately after this, Mr. Swanson of the Federal Loan (or so we assume) called us and informed us he would collect all rentals, and no one else was authorized to accept these monies. We accordingly paid rental to Mr. Swanson.

'Two days ago, Mr. J. A. Alexander, your father called in to see us, and said he had received a letter from you, authorizing him to collect all and any rentals and we copied the following from your letter to him:

"* * * So if Preisz or anyone else is now making payments on our loan, we want this changed. We want him to make payments to you. If you would like us to write him to this effect we will do so.'

"Signed--Wanda Bernard'

'We have since taken this up with Mr. Swanson who demands the rental, and says the contents of the letter mean nothing to him. You can readily see the position in which we, as the tenants are placed, and we shall have to ask that you advise us direct by air mail or telegram exactly what you wish done about these rental payments. It is most disconcerting for us to be buffeted about in this manner, and to not know to whom we are to pay these payments. We are therefore holding up all rental payments until we receive from you written authority as owner to whom we are to make these payments.

'Very truly yours,

'Triangle Music Inc.

'Ruth E. Preisz.'

It appears from other evidence that the defendant had paid the October, 1938, rent to Alexander on October 31st, and the November and December rent to Swanson on November 5th and December 3rd.

After further considering the matter, Mrs. Preisz concluded that the best plan would be to carry out the instructions of the owner of the building, and she sent a check for $135 to Mr. Alexander's residence by messenger on the same day she wrote to Mrs. Bernard. The messenger, Mr. Exner, an employee of the defendant, testified that he was unable to find anyone at the Alexander residence and returned the check to Mrs. Preisz. She then sent it to the appellant's attorney, Mr. Tonkoff. There is a great deal of conflicting evidence as to exactly what course he took, and when. We accept the following statement in the respondents' brief as being in accord with the weight of the evidence: '* * * The first actual tender of the rent was made by Mr. Tonkoff, counsel for appellant, to Mr. Swanson two days following the expiration of the ten day notice period, to-wit, January 28, 1939, and after the filing of the complaint in this cause, and the amount of the tender was exactly the amount of the rent, to-wit, $135.00, without interest and without costs of making or serving the notice and without costs of filing and serving papers in this cause. This tender was refused by Mr. Swanson. * * *'

The check was deposited in court, with the defendant's answer, on January 31st. The cause was tried on February 7th. Holding...