Browder v. Phinney

• Decision Date: 23 September 1902
• Citation: 70 P. 264,30 Wash. 74
• Parties: BROWDER et al. v. PHINNEY.
• Court: Washington Supreme Court

70 P. 264

30 Wash. 74

BROWDER et al. v. PHINNEY.

Supreme Court of Washington

September 23, 1902

Appeal from superior court, King county; W. R. Bell, Judge.

Action by John Browder and another against Nellie Phinney individually and as executrix of the will of Guy C. Phinney deceased. From a judgment in favor of defendant, plaintiffs appeal. Reversed.

S. S. Langland and W. T. Scott, for appellants.

Piles Donworth & Howe, for respondent.

DUNBAR J.

This is an action for damages for wrongful and forcible eviction from leased premises. Plaintiffs obtained from the defendant, on the 31st day of August, 1899, a contract or lease of two storerooms in Seattle, described, for a term of three years with stipulated rent, which contract or lease was signed by defendant, Nellie Phinney, through her agent, Daniel Jones and delivered to plaintiffs. Plaintiffs alleged that they were put in possession of said premises by defendant on October 1, 1899; that they paid rent therefor for the months of October and November of said year to said defendant, and said rent was accepted by said defendant; in short, that they were incommoded during the time of their lease by the improvements which were made upon the premises for the lessor, and were finally, on the 12th day of January, 1900, forcibly evicted from the premises by defendant. At the opening of the trial, defendant's counsel objected to the introduction of any testimony under the complaint, for the reason that it did not state facts sufficient to constitute a cause of action, which motion was denied. At the close of plaintiffs' testimony defendant moved for a nonsuit on the ground that the instrument sued on was invalid, and that the plaintiffs had not shown any facts to take it out of the statute of frauds, and for the further reason that authority in the agent to execute the lease was not shown. This motion was denied by the court. Counsel for defendant then moved the court to instruct the jury to return a verdict for defendant on the ground that a court of law has no power to entertain this suit. This motion was granted, and the case dismissed, the court taking the view that the lease was invalid in law because it was not acknowledged, and that the facts showing part performance of the contract could be enforced in equity, but could not be shown in an action at law. We think the court erred in dismissing the action. Whether or not the contract or lease was originally illegal, it is not necessary for the purpose of this discussion to determine. But, if illegal, a part performance of the contract, either by the plaintiffs taking possession of the premises under the lease or by the payment and acceptance of rent under the terms of the lease, would render the lessor liable for damages for its violation by him; and the court, in holding that part performance could not be shown in an action for damages, lost sight of the rule of concurrent jurisdiction with which courts are clothed, especially under the reformed procedure. Our statute provides that there shall be in this state but one form of action for the enforcement or protection of private rights and the redress of private wrongs, which shall be called a 'civil action'; and this statute evidently means something. It was not intended by this enactment of the lawmaking power to leave in force or to perpetuate the old distinctions which existed at the common law between legal actions and equitable procedures, so far as the manner of bringing the actions is concerned. It was plainly the intention thereby to abolish such distinctions, and to substitute for all other forms of complaint a statement of facts; for it provides that the complaint shall contain a plain and concise statement of facts constituting the cause of action, and this plain and concise statement of facts must necessarily be the same (if it is a concise statement of facts) whether the relief or remedy sought by the action be equitable or legal in its nature. In this case, if the plaintiffs had demanded specific performance, the statement of facts on which the demand would have been based would have been identically the same statement as that upon which the demand made was based. It is not in accordance with the spirit of the Code to turn a litigant out of court, and subject him to the costs and delays of bringing another action before the same tribunal on the same pleadings. If there could be any doubt as to the meaning of the statute in this respect, it is set at rest by the further provision that the defendant may set forth by answer as many defenses and counterclaims as he has, whether they be such as have heretofore been denominated legal or equitable, or both; for it cannot be presumed that the legislature intended to make provision for the determination in one action of legal and equitable rights alleged in an answer, and to preclude the determination in the same action of legal and equitable rights alleged in the complaint. It...