Cline v. Altose

• Decision Date: 08 August 1930
• Docket Number: 22305.
• Citation: 290 P. 809,158 Wash. 119
• Parties: CLINE et ux. v. ALTOSE et al.
• Court: Washington Supreme Court

290 P. 809

158 Wash. 119

CLINE et ux. v. ALTOSE et al.

No. 22305.

Supreme Court of Washington

August 8, 1930

Department 2.

Appeal from Superior Court, Whatcom County; Hardin, Judge.

Action by M. H. Cline and wife against Max Altose and others. Judgment for plaintiffs, and the defendants appeal.

Reversed and cause remanded with instructions.

Sather & Livesey, of Bellingham, for appellants.

F. M Hamilton and C. E. Abrams, both of Bellingham, for respondents.

FULLERTON J.

In this action the respondents, Cline, recovered in damages against the appellants, Altose, as for a wrongful eviction from certain real property which the respondents held under lease from the appellants. The action was tried to a jury, in which a verdict was returned in the sum of $3,500. From a judgment entered on the verdict the appeal is prosecuted.

The principal contention of the appellants is that the evidence does not sustain the verdict of the jury. It may aid to an understanding of the question involved if something of the history of the transactions out of which the controversy arises is recited. The appellants own, and for some years have owned, parts of certain described lots situated in the business section of the city of Bellingham. The property was surrounded by other business properties, the occupants of which were engaged in businesses usual in such a situation. In the early part of the year 1926, an enterprise had been started in another part of the city which it was thought might attract the general public away from this particular locality and which would result in a loss of the patronage the businesses conducted therein had theretofore enjoyed. To counteract this possible loss, the owners of the surrounding property conceived the idea of having a building constructed in the vicinity in which a public market could be conducted. A committee appointed for that purpose approached the appellants and sought to have them erect a building suitable for that purpose on the lots owned by them. They submitted plans for such a building which it was estimated could be constructed at a cost of $30,000. The appellants took the proposition under advisement, and later on concluded to erect the building. It was found, however, that the building as planned could not be erected wholly on the lands owned by the appellants, and that an additional fractional lot would have to be purchased, and which the appellants did purchase at a cost to themselves of $11,500. Subsequently they erected the building, at a cost possibly in excess of the estimated cost; but in their subsequent dealings with the committee and the respondents, they absorbed such difference as there was and treated with the committee on the basis of the original cost. To finance the building the appellants borrowed on the property the sum of $35,000 from a building and loan association, agreeing to repay the loan in monthly installments of $500 each, payable on or before the third day of the month.

The committee selected the respondents as the general tenants of the property, and on June 2, 1926, while the building was in the course of construction, the appellants entered into an agreement of lease with them by which they leased the property to them for a period of ten years; the term to commence on the completion of the building. The rent reserved in the lease was $790 per month for the first year of the term and $770 per month for the remainder. It was agreed that the rental for the last year of the term should be paid at the time the respondents took possession of the building, and that the rental for the preceding years should be paid monthly in advance on the first day of each and every month. It was expressly provided in the lease that the rent should be paid punctually at the time it became due; that the time of the payment was the essence of the agreement; and that for any default therein the appellants could lawfully re-enter the premises and remove all persons therefrom.

The respondents, although they had conducted a grocery in the city of Bellingham for some ten years prior to the execution of the lease, were practically without means, and to finance their part of the undertaking the property holders and business men above mentioned raised among themselves some $8,000, or more, and advanced the money to them for that purpose.

The building was completed by the appellants in the early part of November, 1926, and the respondents took possession thereof under the lease shortly thereafter. The respondents had difficulty in meeting the rental obligation from the start. Rarely, according to the testimony of the appellants which seems not to be denied by the respondents, did they pay it punctually as agreed. At times it was paid in partial payments, the final payments extending well into the month on which it became due. In October, 1927, the citizens' committee, at the request of the respondents, induced the appellants to accept a monthly payment of $600 for the ensuing year; the respondents agreeing to pay the difference, $170 per month, during the last year of the term. This agreement expired by its terms on October 31, 1928, and there was due on the first day of the month following the sum of $770. The lease did not provide for the payment of the rent at any particular place, nor did the respondents tender the rent on its due date, or at any time thereafter. On November 5, some four days after the rental was due and payable, one of the appellants went to the respondents' place of business to collect the rent, and it was then that the acts occurred which are thought to constitute an eviction. These specific acts are stated in the respondents' brief in the following language:

'1. Appellants through Hyman Altose, on November 5, 1928, went to Frank Hiraki and demanded that he pay his rent to appellants, and if not paid they would throw him out.

'2. Appellants, through Hyman Altose, on November 5, 1928, went to Marjorie Hills and directed her not to pay her rent to respondents until she heard again from him (Hyman Altose).

'3. Appellants, through Hyman Altose, on November 5, 1928, went to Marx and demanded rent, and caused Marx to get into the position that he did not know whom to pay.'

On the following day, to quote the language of the respondent M. H. Cline, the following occurred:

'I called Mr. Altose on the telephone and asked him to come over, and he did and then I told him, the fact of his seance here yesterday and him going to Frank, downstairs, the Jap, and I had been informed by other tenants this morning that he had requested them not to pay me any rent, and under these conditions, I considered he broke that lease.'

At this time the respondents tendered the keys of the building to the appellant named and announced that they would immediately remove from the building, and began the work of removing on the same day, completing it on the following morning.

The persons named from whom it is claimed the appellants demanded the payments of rent were subtenants of the respondents, and it was testified by the respondents that the demands of the appellants so confused the tenants that they did not know to whom to pay the rents, and that they were thus unable to make sufficient collections to meet the rents due the appellants.

The evidence thought to sustain the claims made by the respondents is, to us at least, not very satisfactory. The respondents and their son testified that the demand made upon Hiraki for the payment of rent, accompanied by a threat to throw him out, was made in their presence. But both the appellant charged with making the threat and Hiraki deny that any such demand or threat was made. The appellant admits and Hiraki testified that the appellant inquired of Hiraki whether or not he had paid his rent, and testified that Hiraki told the appellant that he was not then owing any rent to the respondents; that Hiraki had paid for the current month, and that his next payment was not due until some five days after the conversation occurred. In corroboration of this statement that no rent was then due from Hiraki to the respondents, the written lease under which Hiraki held his tenancy was produced. This, in express terms, provides for rent payable in advance on the 10th day of each and every month, and even the respondents do not testify that he was then delinquent.

The testimony offered in support of the demands for rent made upon Hills and Marx were admissions claimed to have been made by the appellant Hyman Altose. Both of these tenants deny that any such demand was made upon them. Hills also testifies that she was not then owing any rental to the respondent; that she was holding under a...