Gazzam v. Young

• Decision Date: 08 January 1921
• Docket Number: 16013.
• Citation: Gazzam v. Young, 114 Wash. 66, 194 P. 810 (Wash. 1921)
• Court: Washington Supreme Court
• Parties: GAZZAM et ux. v. YOUNG et al.

194 P. 810

114 Wash. 66

GAZZAM et ux. v. YOUNG et al.

No. 16013.

Supreme Court of Washington

January 8, 1921

Department 2.

Appeal from Superior Court, King County; Everett Smith, Judge.

Action by W. L. Gazzam and wife against J. R. Young and others. From the judgment, all parties appeal. Reversed, with directions.

Silvain & Butler and Kelleran & Hannan, all of Seattle, for plaintiffs.

Edwin James Brown and Chadwick, McMicken, Ramsey & Rupp, all of Seattle, for defendants.

MOUNT J.

This is an action of unlawful detainer. It was brought under the provisions of section 812, subd. 4, Rem. Code 1915, which reads as follows:

'A tenant of real property for a term less than life is guilty of unlawful detainer either--* * *

'(4) When he continues in possession in person or by subtenant after a neglect or failure to keep or perform any other condition or covenant of the lease or agreement under which the property is held, including any covenant not to assign or sublet, than one for the payment of rent, and after notice in writing requiring * * * in the alternative the performance of such condition or covenant or the surrender of the property, served (in the manner provided in this act) upon him, and if there be a subtenant in actual possession of the premises, also upon such subtenant, shall remain uncomplied with for ten days after service thereof. Within ten days after the service of such notice the tenant, or any subtenant in actual occupation of the premises, or any mortgagee of the term, or other person interested in its continuance, may perform such condition or covenant and thereby save the lease from such forfeiture.'

The trial of the case to the court without a jury resulted in a judgment to the effect that plaintiffs were entitled to the immediate possession of the premises against all the defendants and to a judgment in the sum of $8,213 against the defendants Kuwabara, but for costs only against the defendant Young. All the parties have appealed. They will therefore be referred to in this opinion as parties plaintiff and defendant.

The undisputed facts are as follows: In August, 1918, the plaintiffs were the owners of an apartment house in the city of Seattle known as the Lafayette Apartments. On August 8 of that year the plaintiffs leased to the defendant Young these apartments for the period of five years at a rental of $33,000, payable $550 per month. This lease was signed and acknowledged on August 20, 1918. This lease from plaintiff Gazzam to defendant Young, among other things, contained the following provision: 'This lease is not to be transferred without the written consent of the lessor.' On August 19 the day before the lease from Gazzam to Young was executed Mr. Young entered into a lease with Mrs. A. D. Craig for the same premises and for the same term for the sum of $42,000 payable $700 per month. Mr. Gazzam did not give written consent to this lease from Young to Craig. The lease from Young to Craig was a formal lease substantially the same as the lease from Gazzam to Young, and, so far as appeared upon the face of the lease, Mr. Young was the owner of the apartment house. On October 10, 1918, Mrs. Craig, with the consent of Mr. Young, assigned her lease to H. Hoffman and others. Thereafter Mr. Hoffman, on February 3, 1919, with the consent of Mr. Young, assigned the lease to the defendants Kuwabara. Thereafter, on August 29, 1919, the statutory demand was made in writing by the plaintiffs as provided by the statute above quoted, and notice of forfeiture given for breach of the covenant because the lease from plaintiffs was transferred without the written consent of the lessor. None of the defendants complied within the statutory period, and thereupon this action was brought.

At the trial of the case it was sought by the defendants to show that plaintiffs knew of the lease from Young to Craig, and thereby waived the provision in the lease that it was not to be transferred without the written consent of the lessor, and that the plaintiffs are now estopped to contend otherwise. This was a disputed question of fact upon the trial. The defendants Young and Kuwabara argue here that the great weight of the evidence is to the effect that Gazzam knew of the lease from Young to Craig before the lease was executed by Gazzam to Young, and that Gazzam made no objection thereto, but consented to that lease. On the other hand, Mr. Gazzam stoutly denied that he knew of the lease from Young to Craig or the assignment from Craig to Hoffman, or the assignment from Hoffman and others to Kuwabara, until just before this action was begun; that immediately upon learning the fact that Young had assigned his lease Gazzam gave the statutory notice and brought this action.

As we have said, this was the main disputed question of fact. The trial court, after seeing and hearing the witnesses, concluded that Mr. Gazzam had no notice or knowledge of the transfer of the lease by Mr. Young to the other parties. On reading the record in the case we are disposed to agree with the trial court upon that question.

The defendant Young contends that this action can be maintained only where the conventional relation of landlord and tenant exists. He argues further that, if the lease from Mr. Young to Mrs. Craig is an assignment of his interest in the premises, he has assigned his whole interest, and is not in possession, and for that reason cannot be made a party to the action. He also argues that, if the Kuwabaras are in possession under an assignment from Young, these tenants are not the tenants of Mr. Young, and for that reason Mr. Young cannot be made a party, and that, if the Kuwabaras were subtenants, then there has been no violation of the terms of the lease against an assignment. We think there can be no question but that the lease executed by Mr. Young to Mrs. Craig was an assignment of the interest of Mr. Young in the premises. The lease executed by Mr. Young to Mrs. Craig was for the full term of the lease. It provided substantially the same as the original lease from the plaintiffs to Mr. Young. In the case of Sheridan v. Doherty, 106 Wash. 561, 181 P. 16, we said:

'It is established that, if a lessee sublet the premises or a portion of the premises for the entire term or the remainder of a term, the subletting will operate as an assignment either of the entire estate or pro tanto, as the case may be.'

And in Weander v. Claussen Brewing Ass'n, 42 Wash. 226, 84 P. 735, 114 Am. St. Rep. 110, 7 Ann. Cas. 536, we said:

'The instrument is in the form of a lease, and contains apt words designating it as such; but it covers the entire term which respondent had acquired by its own lease.

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