Burns v. Dufresne

• Decision Date: 07 February 1912
• Citation: 67 Wash. 158,121 P. 46
• Parties: BURNS et al. v. DUFRESNE et al.
• Court: Washington Supreme Court

121 P. 46

67 Wash. 158

BURNS et al. v. DUFRESNE et al.

Supreme Court of Washington

February 7, 1912

Department 2. Appeal from Superior Court, Spokane County; E. H Sullivan, Judge.

Action for an injunction by H. H. Burns and another against Edward Dufresne and another. Decree making a restraining order permanent and judgment for plaintiffs for damages, and defendants appeal. Reversed and remanded, with instructions to dismiss the action.

Wakefield & Witherspoon, A. C. Shaw, and E. P Twohy, for appellants.

Del Cary Smith, for respondents.

CROW J.

Upon November 1, 1909, the plaintiffs, H. H. Burns and J. N Thennes, owners of a building on the corner of Post street and Front avenue in the city of Spokane, leased two storerooms on the ground floor to Shubert Theater Company, a corporation, for five years. At that time the lessee was erecting a theater building on the south side of Front avenue, immediately to the rear of, and adjacent to, the east line of, plaintiffs' building. The purpose of the lease was to provide a Post street entrance to the theater. The trial court properly found that, with plaintiffs' consent, the lease was assigned by the Shubert Theater Company to the defendant American Building Company, a corporation. The leased rooms had a frontage of 45 1/2 feet on Post street, and extended easterly to the west line of the theater building. The lessee was authorized to construct at its own expense a theater entrance of such width as it desired. For such purpose it was permitted to change or move a partition between the two storerooms and construct other partitions on either side of the entrance. It was also authorized to use and occupy for any lawful purpose that portion of the leased area not used for the theater entrance. Other provisions of the lease will be hereinafter mentioned. The American Building Company constructed a theater entrance 11 feet in width, separated by partitions from storerooms located on either side thereof within the leased area. When these rooms were ready for occupancy, the American Building Company, as lessee, sublet the south room to the defendant Edmund Dufresne, who intended to use the same for a cigar store and saloon. To make connections with the city water mains and sewer, Dufresne cut a few holes through the storeroom floor. Thereupon this action was commenced by plaintiffs, the original lessors, to enjoin the lessee from subletting to Dufresne, to enjoin him from cutting through the floors, or connecting with the city water mains and sewer, and to recover damages for changes already made. A restraining order was granted, which, after a hearing upon the merits, was made permanent by the final decree. Plaintiffs were also awarded judgment for $10 damages and their costs. The defendants have appealed.

Respondents' principal contention is that the lessee had no power or authority to sublet the south room to Dufresne, without their written consent, which was not granted. The clause upon which this contention is predicated reads as follows: 'The said party of the second part [the lessee] further covenants and agrees not to assign this lease nor to permit any other persons to improve the same or make or suffer any alterations therein except as herein stated, unless the written permission of the said parties of the first part shall have first been obtained in writing.' This is a covenant that the lease itself shall not be assigned; no reference to a subletting being made. The lease also provided that: 'It is further expressly understood and agreed that the said premises hereby demised are to be used by the said lessee, its successors and assigns, for a theater entrance to the theater in the rear of said premises and that so much of said premises as may not be necessary or devoted to a theater entrance hereinafter referred to may be used by said party of the second part for any lawful purpose.' This stipulation seems to contemplate a subletting, for any lawful purpose, of that portion of the leasehold not converted into a theater entrance. The authorities are numerous to the effect that stipulations against an assignment of a lease, or against a subletting, are to be strictly construed. Discussing covenants not to assign or underlet, Taylor, in the ninth edition of his work on Landlord & Tenant, at section 403, says: 'Covenants of this description are construed by courts of law with the utmost strictness, to prevent the restraint from going beyond the express stipulation. If, therefore, the lessee covenants 'not to assign, transfer, set over,' or otherwise do, or put away the lease or...