Browder v. Phinney

• Citation: 79 P. 598,37 Wash. 70
• Court: United States State Supreme Court of Washington
• Decision Date: 16 February 1905
• Parties: BROWDER et al. v. PHINNEY.

79 P. 598

37 Wash. 70

BROWDER et al. v. PHINNEY.

Supreme Court of Washington

February 16, 1905

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 estate of Guy C Phinney, deceased. From a judgment in favor of defendant plaintiffs appeal. Affirmed.

S. S Langland and James E. Bradford, for appellants.

Piles, Donworth & Howe, for respondent.

HADLEY J.

This action was brought by appellants against respondent to secure the reformation of a written instrument claimed to be a lease, and to recover damages, it being alleged that such damages dresulted from a wrongful eviction of appellants from the leased premises and from a conversion of certain personal property. The instrument relied upon as amounting to a lease is as follows: 'August 31st, 1899. I hereby agree with Browder & Compton to lease store rooms 1202 and 4 for a term of three years from Oct. 1st 1899 at a monthly rental fifty dollars first year, seventy five dollars second year and one hundred dollars monthly per last year of said lease. Mrs. Nellie Phinney By Daniel Jones Agt.' It is alleged that by inadvertence and mistake the premises were imperfectly described, in that '1204' was intended to be inserted in place of the figure '4,' and also that the words 'First Avenue, City of Seattle,' were omitted; that it was intended that the description should read, 'Rooms 1202 and 1204, First Avenue, City of Seattle.' It is asked that the instrument shall be reformed in the above particular. It is alleged that appellants took possession of the premises under and in pursuance of said written instrument, and that they so remained in possession until they were wrongfully evicted by respondent. The damages by reason of being deprived of the use of the premises are laid at $2,400, and for conversion of the personal property at $500. Other incidental damages are also alleged. The answer denies that there was any lease and tenancy as alleged, but admits the execution of the written instrument set out above. It also affirmatively alleges that appellants agreed with respondent that the tenancy which the former claimed by virtue of said written instrument should be terminated, and that such alleged tenancy was thereby terminated. The conversion of the personal property is denied. The cause was tried before the court and a jury, and resulted in a verdict for the defendant. Judgment was thereafter entered dismissing the action. The plaintiffs have appealed.

A number of assigned errors relate to the alleged improper admission of evidence, and are based upon the contention that evidence was improper to show the circumstances under which the above-quoted written instrument was signed by the agent of respondent. The instrument does not purport upon its face to be a lease. It is no more than an agreement to lease. It is no more than an definitely described, and which cannot be identified from the description itself. It is not signed by appellants, and does not purport to obligate them as lessees. Relief could not, therefore, be obtained by virtue of the instrument alone on the theory that it constituted a lease. In order to obtain the relief sought, and as growing out of this instrument, it was therefore necessary for appellants to establish a part performance of it. Such, we think, was made clear by this court in its opinion when this cause was here before. See Browder v. Phinney, 30 Wash. 74, 70 P. 264. In order to establish part performance it was necessary for appellants to show that their possession of the premises was taken under the instrument sued upon. That fact was in issue under the pleadings. Respondent claims that appellants' occupancy was initiated some time before the execution of the instrument. Appellants urge that respondent's answer admits that possession was taken by virtue of the writing (notwithstanding it is first specifically denied), in that it is claimed the answer alleges that the tenancy under the lease was, by agreement, terminated. We do not so understand the answer. It is alleged that what appellants claimed as a tenancy under the writing was terminated by their own act; but it is not admitted to have been such a tenancy, and is referred to only as an alleged tenancy. If the possession of appellants was not referable to the instrument in suit, or if their occupancy was but the continuance of a possession which existed prior to the signing of the instrument, then there was no such part performance as would take the case out of the statute of frauds. Inasmuch as it was necessary to show that possession was taken under this...