Coulos v. Desimone
| Decision Date | 08 July 1949 |
| Docket Number | 30609. |
| Citation | 34 Wn.2d 87,208 P.2d 105 |
| Parties | COULOS et al. v. DESIMONE et ux. |
| Court | Washington Supreme Court |
Department 2
Rehearing Denied Aug. 12, 1949.
Action by Christ Coulos and Hazel Coulos, his wife, Theo Armatas and Betty Armatas, his wife, against Peter Desimone and Mary Desimone, his wife, to recover damages for constructive eviction. From a judgment for the plaintiffs, defendants appeal.
Appeal from Superior Court, King County; Clay Allen, Judge.
Torbenson & Baum and Richard M. Thatcher, Seattle, for appellants.
Christ D. Lillions, Seattle, for respondents.
Plaintiffs brought this action to recover damages for their alleged constructive eviction from certain property located at 8502 15th avenue N. W., in Seattle, and referred to throughout the record as the Big V Cafe. The court dismissed defendants Ruff from the action, leaving Mr. and Mrs. Desimone as sole defendants. The case was tried to a jury which returned a verdict for plaintiffs in the sum of $7,000 general damages and in the further sum of $250, the latter amount having been paid by plaintiffs as a lease deposit at the time of execution of the lease. Defendants Desimone moved for a new trial. The court declared it would grant the motion unless plaintiffs agreed to a reduction in their verdict to $4,800 plus $250. Plaintiffs filed their consent to the reduction and judgment for $5,050 and costs was entered in their favor. Defendants Desimone appeal.
Mr. and Mrs. Ruff were the former owners of the real property on which the Big V Cafe was located. In 1942, they leased it to respondents Coulos and Armatas. The lease was for a term of five years, ending June 30, 1947, at the rental of $125 per month. It contained the following provisions:
'This lease shall not be assigned by operation of law, or otherwise, nor any part of the premises sublet without the written consent of the lessor being first obtained in writing.'
Respondents Coulos and Armatas then went into possession of the premises. On June 10, 1943, however, desiring to dispose of their business, they sold the personal property in the restaurant to Mr. and Mrs. Hoffman by contract of conditional sale, and in connection with the transaction drew up an assignment of the lease from Coulos and Armatas to the Hoffmans. The property at that time was being managed by J. A. Burkheimer, a realtor. The papers involved in this transaction were prepared in the office of his father, J. E. Burkheimer, an attorney. The elder Burkheimer testified that he prepared them, not at the request of his son, but at the request of Coulos and Armatas.
Nothing on the face of the assignment suggests that it was made in connection with a conditional sales agreement. It is signed by Coulos and Armatas as first parties and by the Hoffmans as second parties. Following their signatures is an additional clause which reads as follows:
This assignment was mailed to the office of the younger Burkheimer in order that the consent of the Ruffs might be obtained thereto; and their signatures appear on it following the above quoted clause. There was no evidence that the Ruffs ever saw the conditional sales agreement.
A third paper, drawn up in connection with the transaction, is one denominated 'Agreement,' which reads, in part as follows (Respondents Coulos and Armatas are, of course, the 'first parties' referred to; and the Hoffmans, the 'second parties.'):
'2. The first parties have executed an assignment of a lease dated June 29th, 1942, between H. A. Ruff and Grace S. Ruff, his wife, as lessors, and first parties, as lessees for the premises aforesaid, and the original lease together with the assignment and consent to assignment by the lessors, are deposited, together with copy of this agreement, at the Seattle-First National Bank, Ballard Branch.
'3. So long as the second parties are not in default in any of the terms and conditions of said contract of conditional sale, they shall be entitled to the use and possession of the premises described in said lease, and second parties agree that they will pay the rent under said lease from and after June 1st, 1943, as provided in said lease.
'4. Upon full and complete payment and satisfaction of all of the conditions of said contract of conditional sale, the said original lease, assignment thereof and consent to assignment shall be delivered to the second parties, which lease assignment carries with it the right to the lease deposit contained in said lease, i. e. $250.00.
This agreement was signed by Coulos, Armatas, and the Hoffmans. As with the contract of conditional sale, there is no evidence to indicate that the Ruffs ever saw it. Armatas took the contract, the assignment, and the agreement to the Ballard Branch of the First National Bank and there deposited them in accordance with the terms of the latter instrument.
On May 9, 1946, the Hoffmans being delinquent in payments under the conditional sales contract, Christ D. Lillions, respondents' attorney, went to the bank and took possession of the papers that had been left with it. Thereafter, respondents instituted a replevin action in the King County superior court to recover the personal property which was the subject of the conditional sales contract. Hoffman closed the restaurant and left the keys with Desimone, the owner of a neighboring establishment, for delivery to Coulos and Armatas. Armatas, accompanied by Lillions, went to Desimone, who, after inspection of the papers involved in the conditional sales transaction, stated that he believed that Armatas was entitled to the property, and turned the keys over to Lillions. He, in turn, delivered them to the sheriff who levied on the property and took possession of the premises. On or about June 1, 1946, Coulos and Armatas again entered into possession. Judgment in their favor was subsequently entered in the replevin action.
Meanwhile, on or about May 31, the Ruffs sold the real property by real estate contract to Mr. and Mrs. Desimone. Coulos and Armatas apparently were not informed of this transaction. On the same day, Lillions allegedly sent a letter to Ruff and the younger Burkheimer, the realtor, stating that Coulos and Armatas had repossessed the property in accordance with the terms of the agreement made with the Hoffmans, and tendering the June rent. The younger Burkheimer stated that he had not received this letter. Armatas testified that he also made a personal tender of the June rent to the younger Burkheimer, and was told by him that Desimone had purchased the property, and that he, as agent for the Ruffs, had nothing more to do with it. Burkheimer did not recall this conversation. In any event, on June 19, Lillions sent a letter to Desimone, stating that he had been advised that the latter had purchased the property, and making another tender of the rent. On June 24, the elder Burkheimer, who was now acting as attorney for Desimone, replied to this letter, refusing to accept the tender of rent, and stating:
* * *
* * *
'Under the above conditions, Mr. Desimone asserts the right to determine whether he will or will not consent in writing to any assignment of this lease from any person legally entitled to assign the same, and until his consent is obtained in writing, he will not recognize any assignment of any interest therein by anyone.'
On July 26, Lillions replied to this letter, to the following effect:
Meanwhile, the acts now chiefly relied on to constitute a constructive eviction had taken place. After taking over the Big V Cafe, Coulos and Armatas put it up for sale once more by placing an advertisement in the newspaper. Prior to this, however, Desimone, accompanied by Hoffman, came to the restaurant. Coulos testified that Desimone offered him $2,000 to leave the place, and that the following occurred:
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Munro v. Swanson, No. 55811-1-I/2 (Wash. App. 2/20/2007)
...consent of the lessor, and an assignment in violation of such a covenant will confer no rights on the assignee. Coulos v. Desimone, 34 Wn.2d 87, 98-99, 208 P.2d 105 (1949). Here, the Lease allows for assignment, but it clearly requires a process to make any assignments valid. Failure to fol......
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...36 Wash.2d 236, 243-44, 217 P.2d 326 (1950); Merrick v. Neely, 143 Wash. 588, 594, 255 P. 936 (1927). 4 See also, Coulos v. Desimone, 34 Wash.2d 87, 208 P.2d 105 (1949); Nipet Realty, Inc. v. Melvin's Rest. & Bar, Inc., 67 Misc.2d 790, 327 N.Y.Supp.2d 2 The rationale for implying a right of......
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...of beneficial enjoyment of the demised premises or any part thereof, or materially impairs such beneficial enjoyment. Coulos v. Desimone, 34 Wash.2d 87, 208 P.2d 105 (1949). Whether there has been such an eviction is, of course, generally a question of fact to be determined by the trier of ......
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OTR v. Flakey Jake's, Inc.
...acquiescence. This issue, however, simply has no bearing on the resolution of the case. Nevertheless, relying on Coulos v. Desimone, 34 Wash.2d 87, 208 P.2d 105 (1949), Selig appears to argue that the sublease is a valid assignment since no consent is necessary for a reassignment back to an......
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