Delano v. Tennent

• Decision Date: 12 March 1926
• Docket Number: 19726.
• Citation: 244 P. 273,138 Wash. 39
• Parties: DELANO v. TENNENT et al.
• Court: Washington Supreme Court

244 P. 273

138 Wash. 39

DELANO v. TENNENT et al.

No. 19726.

Supreme Court of Washington

March 12, 1926

Department I.

Appeal from Superior Court, Pierce County; Card, Judge.

Action by Edith H. Delano against M. G. Tennent and another. From a judgment for plaintiff, defendants appeal. Reversed and remanded, with directions.

Lyle Henderson & Carnahan, of Tacoma, for appellants.

Rex S Roudebush, of Tacoma (Chas. Bedford, of Tacoma, of counsel) for respondent.

FULLERTON J.

On August 7, 1919, the Safety Investment Company, a corporation being then the owner of certain real property situated in the city of Tacoma, on which there were certain buildings, leased the property for a term of five years to the Malleable Steel & Iron Company, also a corporation. As a consideration for the lease, the latter company agreed to pay in advance as rental $80 per month on the 1st day of each and every month; agreed to pay all taxes and assessments that might be levied upon the property and the buildings thereon accruing during the term of the lease; agreed to keep the buildings on the property insured; agreed not to commit or suffer waste; agreed to quit and surrender the premises at the end of the term in as good order and condition as they then were or might 'be put into'; agreed to take the buildings on the premises as they then were; agreed that if changes, additions, or repairs were necessary or desirable, to bear the expense of making the same; and agreed not to assign the lease without the written consent of the lessor.

On October 10, 1919, the Safety Investment Company sold and conveyed the property to the respondent, Edith H. Delano, subject to the lease, and assigned to her its interest in the lease. The Malleable Steel & Iron Company held the property under the lease until August 13, 1920, paying the rental to the lessor as long as it owned the property, and subsequent thereto to the respondent. On the date last given, the lessee, with the written consent of Mrs. Delano, assigned all of its interest in the lease to the appellant M. G. Tennent; he, by the conditions of the written assignment, agreeing to assume and carry out all of the obligations of the lease according to its terms.

The appellant, on acquiring title to the leasehold interest, organized a corporation under the name of Tennent Steel Casting Company, and this corporation entered into possession of the property and held it for the remainder of the term. The buildings on the premises were erected for the purpose of conducting a foundry, and for this purpose the premises were used by the occupants under the lease. During the time the property was in the possession of the lessees a number of structures were erected on the premises useful in the business of conducting a foundry. These, in part consisted of a core oven, an electrical transformer, a jib crane, and a hoist. There were also erected a number of structures in the form of additions to the main buildings, and one building was erected which was not joined to the main building, but which was used in conjunction therewith. The floor of the main building was made of clay, three or four inches thick, as a protection against fires arising from moulding processes.

The Tennent Steel Casting Company, about a year prior to the expiration of the lease, moved from the leased premises to another site in the city of Tacoma, quitting entirely further use of the leased premises. The monthly rental, however, was paid regularly until the expiration of the lease. On removing from the permises, the Tennent Steel Casting Company tore down and carried away all of the new structures erected during the time the lessees were in possession. It also tore down the core oven, destroyed the transformer and removed all that was valuable of the materials of which it was composed, practically destroyed the clay floor, removed the crane and hoist, weakened the supports of the main building, and left the premises covered with débris; in fact, as we view the evidence, the structures on the premises were practically destroyed, leaving the premises unfit for foundry purposes, or for any useful purpose, without extensive and costly replacements and repairs. The destruction committed, however, was the natural result of removing the structures.

The lessor, Delano, according to her testimony, did not learn of the demolished condition in which the structures on the premises were left until after the expiration of the lease. On so learning, she began the present action against M. G. Tennent, individually, and against him and his wife as a community, to recover in damages for the injury to the premises. She recovered in the sum of $1,620, with costs of the action. Both of the parties appeal.

Noticing the appeal of the defendants, it is first contended that they are not liable for the wrongful injuries to the property even conceding that any such wrongful injury was committed. It is argued that to maintain the action it was necessary to show that the relation of landlord and tenant existed between them and the owner of the premises, and that no such relation was shown; that neither of the defendants had any covenant obligations whatever running to the plaintiff; and that neither of them entered into the possession of the property, or paid rent therefor. But we cannot follow the argument. It is possibly true that, after the appellant M. G. Tennent received an assignment of the lease, the Tennent Steel Casting Company took possession of the premises, and that it was this company who demolished the structures on the premises on removing therefrom. But the assignment of the lease was made to M. G. Tennent, and he, as we have shown, assumed the obligations of the lease. The corporation which entered into possession of the premises was but his creature, and it entered under his direction and with his consent. As between the plaintiff and himself, therefore, the corporation was either his agent or his servant, and in either event he is answerable to the plaintiff for any wrongful injury done to the premises by the corporation. It is not the rule that a lessee of premises may escape the covenants of his lease by assigning his lease to another or by placing another in possession of the leased premises. Liability can be escaped only by a new contract. This must be an agreement that the landlord will accept the...