Hardman Estate v. McNair

• Decision Date: 05 December 1910
• Citation: 111 P. 1059,61 Wash. 74
• Parties: THE HARDMAN ESTATE v. McNAIR et al.
• Court: Washington Supreme Court

111 P. 1059

61 Wash. 74

THE HARDMAN ESTATE v. McNAIR et al.

Supreme Court of Washington

December 5, 1910

Department 1. Appeal from Superior Court, King County; R. B. Albertson Judge.

Action by the Hardman Estate against James A. McNair and another. Judgment for defendants, and plaintiff appeals. Judgment affirmed.

Reed &amp Hardman, for appellant.

Kerr &amp McCord, for respondents.

PARKER J.

This is an action to recover rent alleged to have accrued since July 1, 1909, upon a lease of the basement of the Hotel Wilhard building, in Seattle. The provisions of the lease necessary for us to notice are the following: 'THE LESSOR AGREES TO ARRANGE THE WEST basEment room, as in its judgment shall be best, for a café, and arrange the east room for kitchen and servants' quarters (it shall not, however, furnish any fixtures, furniture or other equipment) it being understood that in the event it is impracticable to arrange servants' quarters in the east basement that would comply with the city ordinances governing in such cases, the space shall be left to be used for such other purposes as the lessees may see fit; the rent to commence from the date the premises are ready for occupancy. Said lessees shall not do or permit to be done anything unlawful in the said premises nor use said premises for any other purpose than that of a café, or other incidental purpose connected with the business of running a hotel.' The complaint alleges that the plaintiff completed the arrangement of the premises as agreed about June 25, 1909, and notified the defendants that the premises were ready for occupancy about June 28, 1909; and that the defendants agreed to accept the premises as of July 1, 1909. The defendants deny their acceptance of the premises, and allege, in substance, that the premises have not been completed as agreed; that they are unsuitable and unfit for café and kitchen purposes; and that the defendants are therefore unable to use them for any purpose contemplated by the lease. The case was tried by the court without a jury, resulting in findings and judgment in the defendants' favor. The plaintiff has appealed.

The trial court found, in substance, the following: Appellant made certain alterations in the premises, and on June 28th notified respondents that the premises were ready for occupancy; and on July 1st demanded of respondents the payment of the rent for July. On June 28th respondents advised appellant that they would accept the premises on July 1st, if the same were in fact ready for occupancy; but that on that day the premises had not been completed, and were unfit for use, and respondents refused to accept the same and refused to pay the rent demanded. Rent has been demanded for each month since then and payment refused. The premises have never been completed as agreed, and are unfit for use for the purpose contemplated, and for that reason respondents have refused to accept the same, and refused to pay the rent.

The principal contentions of learned counsel for appellant arise upon exceptions to the court's finding relating to the failure of appellant to complete the premises as agreed, and upon their exception to the refusal of the court to find as requested by appellant, to the effect that the premises were completed as agreed, and that respondents accepted the premises before July 1st. We have carefully read all of the evidence, but will not attempt a detailed review of it here. There was conflict in the evidence as to the proper arrangement and completion of the premises for use as contemplated. We are inclined to agree with the learned trial court, however, that the evidence preponderated in respondents' favor on this question. There was evidence tending strongly to show that the kitchen was so arranged and constructed that it was not properly ventilated, and for that reason could not be used as a kitchen. Two city inspectors testified, in substance, that it was not properly ventilated and for that reason in its present condition a restaurant would not be permitted there by the city authorities. There was also evidence tending to show that the...