Deming v. Jones, 24352.

• Decision Date: 25 July 1933
• Docket Number: 24352.
• Citation: 173 Wash. 644,24 P.2d 85
• Parties: DEMING et ux. v. JONES et al.
• Court: Washington Supreme Court

24 P.2d 85

173 Wash. 644

DEMING et ux. v. JONES et al.

No. 24352.

Supreme Court of Washington

July 25, 1933

Department 2.

Appeal from Superior Court, Snohomish County; Guy C. Alston, Judge.

Action by J. H. Deming and wife against Walter Jones and others. Judgment of dismissal and plaintiffs appeal.

Affirmed.

John J Kennett, of Seattle, for appellants.

Jno. J Pinckney, of Blaine, Black & Rucker, of Everett, and Tom Alderson, of Seattle, for respondents.

TOLMAN Justice.

This is an action in unlawful detainer brought by appellants, as plaintiffs, to recover possession of certain real property leased by them, for the term of twenty years under a written lease, in an unimproved state to be improved by the lessee and used as a gasoline station and for kindred purposes. At the opening of the trial below a tender was made and paid into the registry of the court of a sum of money deemed sufficient to cover all rental due. After a trial to the court sitting without a jury, the trial court rendered an exhaustive memorandum opinion, made findings of fact and conclusions of law favorable to the defendants, and a judgment followed dismissing the plaintiffs' action with prejudice, but awarding to them the money tendered into court amounting to $359.32. Costs accruing subsequent to the tender were awarded to the defendants. From that judgment plaintiffs prosecuted this appeal.

The plaintiffs' attempted forfeiture of the lease was based upon three grounds: (1) Nonpayment of rent; (2) that intoxicating liquor had been permitted upon the premises in violation of the terms of the lease; and (3) that gambling devices were there maintained and operated in violation of the state law; and to some extent also upon the theory that respondent Frazine purposely limited the sales of gasoline so as to reduce the rent to the minimum.

The errors assigned very largely raise questions of fact only and we have accordingly diligently examined all of the evidence contained in the record. Because of the partisan interest of most of the witnesses who testified to controlling facts, this is peculiarly a case where the impressions to be gained from seeing and hearing the witnesses are of the utmost importance, and it is quite evident that the trial court did give greater weight to the testimony of some than he did to that of other witnesses.

The trial court found that the plaintiffs were the owners of the real property involved, and:

'That on the 14th day of September, 1928, said plaintiffs, by written instrument, leased the above described land to the defendants, Walter Jones and Alma Jones, his wife, for a term ending on the 31st day of March, 1949; that, pursuant to the terms of said lease, said defendants, Jones, made certain improvements on said land and erected a service station thereon, and also erected a dwelling house and small lunch room or restaurant on the premises, some distance from the service station. That on, or about, the 30th day of July, 1930, the defendants, Jones, with the consent of the plaintiffs, sold said improvements, buildings, etc., and assigned said lease, to the defendant, O. G. Frazine, for the sum of $6,000.00; and the said O. G. Frazine and Sadie Frazine, his wife, ever since have been, and now are, the owners of said lease and the buildings and improvements located thereon, and are the only defendants financially interested in said property.

'That the defendant, O. G. Frazine, operated the gasoline service station from the first day of August, 1930, until February 1st, 1931, when he purchased a newspaper in Blaine, and hired his son-in-law, the defendant Wheeler, to operate the station, and said Wheeler did operate said gasoline station as an employee of the defendant, Frazine, up to the time of the trial. That the defendants, Wilder and wife, and Casey and wife, were, for a portion of the time, sub-lessees from the defendants, Frazine, of the small lunch room or restaurant, which lunch room or restaurant was never operated by the defendants, Frazine.

'That on or about the 23rd day of November, 1931, the plaintiffs caused a 'Notice of Forfeiture of Lease' to be served upon the defendants, Jones and Frazine. That said notice was a thirty day notice and was based upon several alleged grounds: that incorrect statements had been furnished of the quantity of gasoline sold; that Frazine had refused to furnish statements from the oil companies; that he had failed to use his

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