Clarke v. Yukon Inv. Co.
| Decision Date | 11 January 1915 |
| Docket Number | 12153. |
| Citation | 83 Wash. 485,145 P. 624 |
| Parties | CLARKE v. YUKON INV. CO. et al. |
| Court | Washington Supreme Court |
Department 1. Appeal from Superior Court, King County; R. B. Albertson Judge.
Action to foreclose a mechanics' lien by H. M. Clarke against the Yukon Investment Company, the Purcell Investment Company and others, in which the Purcell Investment Company and others filed a cross-complaint asking that the cost of the improvements be charged solely to the Yukon Company. From a judgment for the plaintiff against both defendants, and for the Purcell Company against the Yukon Company, the Yukon Company appeals, and the other defendants enter cross-appeals. Judgment against the Yukon Investment Company reversed and remanded, with instructions to dismiss as to it and judgment against the other defendants affirmed.
Bausman Kelleher, Oldham & Goodale, of Seattle, for appellants.
Hughes, McMicken, Dovell & Ramsey, Gay & Kelleran, and Walter B. Beals, all of Seattle, for respondent.
The Yukon Investment Company is the owner of a certain brick building in the city of Seattle, known as the Tourist Hotel property. The Purcell Investment Company held the premises under a long-term lease. The lease contained the following provisions:
After the lease had run for about two years, the city of Seattle, through its proper agents, notified the Yukon Investment Company that it would be necessary to install an additional fire escape. The company replied that the property was held under a long-term lease and disclaimed liability. Whereupon the city notified the Purcell Investment Company. The agent of the Purcell Company had certain negotiations with the Yukon Company, out of which, as it is alleged in the pleadings, a contract to pay for the fire escape arose, and that it thereafter acted only as the agent of the Yukon Company. In any event, Purcell negotiated with plaintiff for the installation of a fire escape, accepting the proposal to do so in writing as follows:
We agree with the trial judge that there was hardly a pretense of sustaining this theory of the case upon the trial. Certainly the Purcell Company did not maintain the burden of proof, and we shall not review the testimony but proceed at once to discuss the legal phases of the case.
In the absence of a covenant to make repairs or to keep the property in proper condition for the uses intended, there is no liability on the part of the lessor to do so. It has been so held by us in Howard v. Washington Water Power Co., 75 Wash. 225, 134 P. 927; Mesher v. Osborne, 75 Wash. 439, 134 P. 1092, 48 L. R. A. (N. S.) 917; Johnston v. Nichols, 145 P. 417.
The Yukon Company insists that it is not liable (a) under the express terms of the lease; and (b) by a fair construction of the whole act (chapter 29, Laws 1909) it is evident that the Legislature intended it to apply only to an owner who is in possession and who is conducting a hotel business, and the conclusion is compelled that all of the burdens of the act should be borne by the business. Counsel cite McManamon v. Tobiason, 75 Wash. 46, 134 P. 524; Rockwell v. Eilers' Music House, 67 Wash. 478, 122 P. 12, 39 L. R. A. (N. S.) 894; Hayton v. Seattle, B. & M. Co., 66 Wash. 248, 119 P. 739, 37 L. R. A. (N. S.) 432.
This court has held that where premises are let under general terms, no restrictions being put upon the use, the lessee having the privilege to use them for all lawful purposes, the landlord is not bound to meet a burden imposed by a statute or an ordinance, whether that burden be in the form of money expended to meet the demands of the sovereignty or whether the use to which the property is put is impaired or destroyed in virtue of the statute or ordinance. The theory being that one who leases property without restriction as to use takes under an implied obligation to meet every expense incident to the use to which it may be put, whether induced by considerations of convenience or profit, or whether compelled by superior authority. If it were not so, a landlord might be called upon to meet the cost of fire escapes, if the lessee decided to open a rooming house. If that use proved unprofitable, the tenant might use the property as a theater or picture show, and the landlord would be compelled to provide such additional exits and escapes as the statutes and ordinances require, or, that venture failing, he might be called upon to meet the expenses of adapting the premises to the requirements of a restaurant, if the lessee willed to engage in it.
In the Hayton Case it was held that a permission to use the property leased for saloon purposes did not restrict the use of the premises for other lawful purposes, and a retirement from that business under compulsion of the local option law did not terminate the lease. The governing principle (i. e., a landlord will not be held to meet the burden of an exercise of the police power) would seem to apply here.
In the Rockwell Case there was no restriction upon the use of the demised premises. It was alleged that the property had been used for public shows and entertainments; that the lessor knew that the property had been leased for the purpose of carrying on a moving picture show; that the lessee did not know and the lessor did not disclose to him that the premises could not be so used or be used for the use of audiences for any purpose 'until an exit for escape in case of fire' had been made in the building. It was agreed in the lease that the lessee should make repairs and permanent improvements. The lessor refused to make the exit at its own expense when notified by the chief of the fire department to do so. An action was brought as for an abandonment of the lease by the lessor. We held:
That the 'use of the premises was not limited by the terms of the lease; that the lease is complete in itself; that the respondents did not engage to make any repairs or improvements upon the premises; that the appellant did engage to make certain improvements; that both parties were bound to take notice of the police regulations of the city where the subject-matter of the contract was situated; that there is no averment that the respondent misled the appellant, or that it refused to permit him to construct the exit upon the wall of the building without the terms of the lease; that, upon the cancellation or surrender of the lease, the appellant was obligated to pay all rent that had accrued by the terms of the lease; and that the complaint, when read with the lease, shows no breach of any of its terms or of any legal duty upon the part of the respondent.'
The logic of this decision is that parties may make any lawful contract, and, in the absence of a stipulation specifically covering the disputed right, the contract is made subject to and with implied knowledge of police regulations, present and prospective, which may affect the use of the property while subject to the tenancy.
The McManamon Case rests upon the same principle. There the building was by apt terms let for hotel purposes and such business as is generally incident to the hotel business. It could not be used for any other business without the written consent of the lessor. There, as here, the agency of the state, exercising its police power, made certain demands in the interest of the safety of guests and patrons. Here we have an order to install an additional fire escape; there the order was to provide ventilation in certain of the bedrooms which, if complied with, required changes and alterations, permanent improvements considering the use to which the lessor had restricted the use of the building. It was held upon the ground of insufficiency of the evidence that a recovery for the expense of the alterations and improvements could not be had. It may be said arguendo that a recovery should have been allowed irrespective of the contract if the theory of the Purcell Company is a correct conception of the law, for the improvement was of a permanent character, not within the contemplation of the parties, except as the law charged them with notice of possible safeguards in aid of patrons of the hotel. The McManamon Case is an apt authority to sustain our reasoning that, while there may be a contract liability for improvements, no such liability arises under the statute where the improvement is compelled by public authority as an...
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