Bunn v. Bates, 31151.

• Decision Date: 04 April 1950
• Docket Number: 31151.
• Citation: 216 P.2d 741,36 Wn.2d 100
• Parties: BUNN, v. BATES et al.
• Court: Washington Supreme Court

216 P.2d 741

36 Wn.2d 100

BUNN, v. BATES et al.

No. 31151.

Supreme Court of Washington.

April 4, 1950

Department 2.

Brown and Brown Spokane, for Madison Corporation, Inc.

Garvin, Frissell &amp George, Spokane, for respondent. ROBINSON, Justice.

This appeal arises out of an action instituted in the superior court of Spokane county to establish and enforce a lien on certain property therein located, known as the Madison hotel.

The cause was heard Before a judge, sitting without a jury, in June, 1947. In due course, a judment was entered in favor of the plaintiff Bunn, establishing a lien for $577.26, plus interest on that sum from January 27, 1947, plus 60cents for filing the claim of lien, and attorney's fees for the sum of $300. An appeal was taken to this court, and the following disposition was made thereof:

'We are unable to determine from the evidence which labor and material was used in performing the work which was mandatory under the lease, and which labor and material was used in performing work which was permissive.

'The judgment is reversed, and the cause remanded to the trial court to take additional testimony and render a decision in accordance with this opinion. Appellant shall recover its costs.' Bunn v. Bates, 31 Wash.2d 315, 196 P.2d 741.

Following that direction another hearing was had in April, 1949, Before the same judge who tried the matter in 1947, and resulted in a similar judgment against The Madison Corporation, from which this appeal was taken in due course.

Prior to the second hearing, the plaintiff, John H. Bunn, having died in August, 1948, his surviving spouse and executrix, Floretta Josephine Bunn, was, by order of the court, substituted as plaintiff in the action.

The facts out of which the controversy arose are very fully and accurately stated in the opinion hereinBefore cited, and, therefore, only a brief summary thereof will be set out in this opinion. We have two statements of fact to deal with, however; for, at the very beginning of the second hearing of the case, in which the judgment entered is attacked on this appeal, the statement of facts in the first trial was admitted as defendant's exhibit No. 1.

Prior to, and during, 1946, Frank B. Jenkins was engaged, in Spokane, in the business of property management, insurance, and real estate, carried on under the name, The Jenkins Agency. In the summer of 1946, his office sold a large building in Spokane, known as The Madison Hotel Building, to The Madison Corporation, the corporation receiving title about July 1, 1946, and Jenkins was requested by the corporation to find a suitable tenant for a large, vacant portion of the ground floor, one hundred fifty feet by fifty feet, together with a basement space thereunder, ninety-three feet by eighty-nine feet, and report to it the qualifications of the proposed tenant. In October, 1946, The Jenkins Agency wrote a letter to The Madison Corporation, stating that, subject to its approval, it had found an opportunity to rent the vacant space on the ground floor, and in the basement, to J. B. Bates, of Kennewick, Washington, and reported, as to this qualifications, that he was the owner of a hotel and business property in Kennewick and a hotel in Coulee City, that he operated two variety stores, and that his Due & Bradstreet rating was '$125,000 to $200,000, good pay.'

In that letter, The Jenkins Agency further said, with respect to Bates:

'He will take the space 'as is' and re-wire it so that all current consumed by him will be on his own individual mater. All necessary repairs and alterations will be made by him during the course of the lease. The Madison Corporation will put the plumbing and hand-operated elevator in good working condition.'

As the result of the letter, above mentioned, a meeting was had on October 30, 1946, between Jenkins and Bates, on the one hand, and Dr. Whitaker, president of The Madison Corporation, and Roy S. Hathaway, a director thereof, on the other. After considerable discussion, the representatives of the corporation agreed to accept Bates as a tenant, whereupon the meeting adjourned, and the four men went to the office of the corporation's attorney to have the lease drawn. The lease, prepared and executed that day, covered a period commencing on December 1, 1946, and ending on November 30, 1951.

It was provided in the lease that the lessee could remodel and modernize the front of the storeroom, and that the lessee would redecorate and remodel the interior of the storeroom at his own expense.

This litigation, however, arises out of the following provisions of the lease:

'All electrical wiring shall be changed to the effect that all circuits in leased area are to be removed from present light meter and new meter loop established.

'All changes for the aforesaid re-modeling and re-wiring to be done at the expense of the lessees.'

Shortly following the hearing directed by our opinion in 31 Wash.2d 315, 196 P.2d 741, the trial judge rendered a comprehensive memorandum opinion, first stating therein that the opinion, above cited, established the law of the case. We, of course, concur in that.

'The law is well settled in this state that on a second appeal we will not review questions decided by us on the former appeal. [Citing three prior decisions of this court.]

'Upon the retrial the parties and the trial court were all bound by the law as made by the decision on the first appeal. On appeal therefrom the parties and this court are bound by that decision unless and until authoritatively overruled.' Baxter v. Ford Motor Co., 179 Wash. 123, 127, 35 P.2d 1090, 1092.

Having read the testimony adduced in both hearings, we will further say that we do not recede from any of the legal or factual statements in the opinion in 31 Wash.2d 315, 196 P.2d 741, but, by reference, we restate and reaffirm them in this opinion.

Appellant assigns error as to five of the trial court's eleven findings of fact. We have considered each of the findings of fact excepted to and find that each of them is supported by evidence adduced in one or other of the hearings, and in some cases, in both, and in other instances, by factual holdings made in this court's opinion in 31 Wash.2d 315 to page 320, inclusive, 196 P.2d 741. The findings were, to a considerable extent, made upon conflicting eidence, and for that reason, and for the other reasons above indicated, will not be disturbed. Appellant also assigns as error, and contends argumentatively, that, after this court remanded the case for further testimony, none was introduced on the part of respondent which would give any relief under the facts and law of the case.

We reject that assignment and argument. The trial court's memorandum opinion pointed out that this court had held that it was mandatory, under the lease, to put in a new distribution panel, disconnect the circuits serving the leased property from the old distribution panel, and tie them into the new distribution panel, and that a portion of the labor and material claimed to be lienable, was obviously used for that purpose, and continued as follows:

'It is the trial court's function and duty to determine the quantity of materials and labor so used. In so doing, the trial court has had the benefit of additional expert testimony from competent electricians on both sides; and in addition, at the request of counsel, has made a personal examination and inspection of the building in question owned by the Madison Corporation. This personal inspection by the trial court has been especially valuable in resolving the question as to the amount of labor and materials that were furnished by the Bunn Electric to the Madison Corporation. The building is a very large building, running nearly 150 feet in depth and nearly 100 feet in width. * * *. For the purposes of this decision this court is starting with the first distribution panel...