Heywood v. Ogden Motor Car Co.

• Decision Date: 13 April 1928
• Docket Number: 4493
• Citation: 266 P. 1040,71 Utah 417
• Court: Utah Supreme Court
• Parties: HEYWOOD et al. v. OGDEN MOTOR CAR CO

266 P. 1040

71 Utah 417

HEYWOOD et al. v. OGDEN MOTOR CAR CO

No. 4493

Supreme Court of Utah

April 13, 1928

Appeal from District Court, Second District, Weber County; J. N Kimball, Judge.

Action by Elizabeth Guthrie Heywood and John Guthrie Heywood, as executrix and executor of Abbott R. Heywood against the Ogden Motor Car Company, in which defendant asserted set-offs. Judgment for plaintiffs and defendant appeals.

REVERSED, with directions.

Pratt &amp Pratt, of Ogden, for appellant.

Henderson & Johnson, of Ogden, for respondents.

HANSEN J. THURMAN, C. J., and CHERRY, STRAUP, and McCREA, District Judge, concur. GIDEON, J., did not participate.

OPINION

HANSEN, J.

This action arose out of a written lease whereby the plaintiffs leased to the defendant certain premises located in Ogden City, Utah. The plaintiffs' complaint sets out five causes of action. The first cause of action is for the recovery of rent alleged to be due and owing under the terms of the lease. The second cause of action is for damages alleged to have been done by the lessee to the roof of the building located upon the leased premises. The third cause of action is for money paid by the lessors for electric power furnished to light the leased premises. The fourth cause of action is for repairs to the leased building made by the plaintiffs which they alleged should have been made by the defendant. The fifth cause of action is for attorney's fees for the prosecution of plaintiff's action.

Defendant admits in its answer the execution of the lease and that defendant is in possession of the leased premises. The answer denies generally the allegations of plaintiffs' second, third, fourth, and fifth causes of action. Facts are also alleged in the answer by reason of which defendant claims it is entitled to a number of set-offs against the rent reserved to the plaintiffs under the contract of lease. Defendant further alleges in substance that it was prevented from entering into the possession of the leased premises on December 1, 1924, by reason of the fact that plaintiffs failed and neglected to perform their part of an agreement whereby plaintiffs became obligated to put the leased premises in a fit suitable condition for use and occupancy before December 1, 1924; that, by reason of the failure of the plaintiffs to perform their agreement in this respect, defendant was deprived of the use of the whole of the leased premises until December 9, 1924, and was also deprived of the use of a part of the leased premises until December 28, 1924, to defendant's loss in the sum of $ 237.85. Defendant also alleged in its answer that plaintiffs agreed to paint, calcimine, clean, and repair the leased building, but that they failed to perform their agreement in this respect, and that defendant was compelled to and did paint, calcimine, clean, and repair the leased building at a cost of $ 181.70. As an additional set-off, the defendant alleges:

"(h) That in the month of July, 1925, over the protest of defendant, plaintiffs caused the electrical power, motor and appliances to be detached and removed from said elevator and converted the same into a hand power elevator, thereby so decreasing the rental value of said leased premises that the same are not and have not since been reasonably worth to exceed $ 350 per month, by reason of the greater expense and loss of time and labor to operate said elevator in the movement of defendant's automobiles, to defendant's continued damage from month to month in the excessive amount required to be paid by defendant from month to month under the terms of said lease.

"Defendant further alleges that it has hitherto repeatedly demanded of plaintiffs that they pay to defendant, by credit upon said rents or otherwise, the losses and damages so in the manner aforesaid sustained by it, and monthly heretofore as the rents for which plaintiffs sue have become due, said defendant has offered and tendered to plaintiffs the difference between said rents and defendant's losses, but plaintiffs have refused and still continue to refuse to accept said differences or allow said credits or pay said losses; that defendant now affers and is ready, willing, and able to pay such difference."

Plaintiffs filed a reply to defendant's answer. In the reply it is admitted "that at the time of the execution of said lease plaintiffs agreed to make certain minor repairs upon said premises," and it is alleged "that all * * * repairs * * * were made by plaintiffs as agreed." Plaintiffs deny that defendant was deprived of the use of the whole or any part of the leased premises after December 1, 1924: They allege also that the defendant released plaintiffs from any liability resulting from a failure of defendant to secure possession of the leased premises because of an appended agreement to the lease. The appended agreement to the lease reads as follows:

"It is further agreed by the parties hereto that, if the lessee be denied the possession and or occupancy of the said premises, or any part thereof, at the time of the commencement of the term of this lease, or thereafter, by reason of the failure of the present tenant, Wattis-Kimball Motor Company, a corporation, to vacate the same, then said lessors shall not be liable, and are hereby released from any liability, therefor, and in such event said lessee shall look to, and/or hold liable, said Wattis-Kimball Motor Company for any and all losses and/or damages of whatsoever kind and nature, resulting to lessees by reason such denial of said possession and/or occupancy."

Replying to defendant's claim for a set-off because of the change in the elevator, the plaintiffs allege:

"Replying to paragraph (h) of the affirmative defense set up in said answer, admit that in the month of July, 1925, plaintiffs changed said elevator from an electric power to a hand power elevator, which said change was necessary to make said elevator conform to the requirements of law. Deny that said change decreased the rental value of said leased premises, in that the ground floor only of said premises was leased to defendant, and allege that the loft above said ground floor which said elevator served was not leased to defendant, and that as to the use and occupation of said loft was a mere licensee. Deny that defendant was or has been damaged by said change in any amount whatever."

At the conclusion of all of the evidence, the trial court instructed the jury in part as follows:

"The court takes the responsibility of disposing of this action, in part, and you are instructed that the defendant is not entitled to recover anything on either of the counterclaims set forth by him in his answer and counterclaim.

"You are therefore instructed to find a verdict for the plaintiffs, and against the defendant, for the sum of $ 1,566.28, being for the rent of the demised premises for the months of September, October, and November, 1925, together with interest thereon, and the sum of $ 46.83 paid by plaintiffs for electric lights as set forth in their third cause of action, to which you will add such sum, if any, as you may find the plaintiffs to be entitled to recover for attorney fees in this action.

"The court has dismissed the plaintiffs' action as to the second and fourth causes of action."

Thus the only question submitted to the jury for determination was the amount that should be allowed as attorney fees for the prosecution of this action. The jury returned a verdict in favor of the plaintiffs and against the defendant for the sum of $ 1,766.28, and judgment was entered accordingly. A motion for a new trial was made by the defendant and denied by the court. Defendant prosecutes this appeal from the judgment.

Defendant first assigns as error the failure of the trial court to dismiss plaintiffs' action. It appears from the record that, after this action was commenced, the assets of the estate of Abbott R. Heywood were distributed to Elizabeth Guthrie Heywood and John Guthrie Heywood, and they were discharged as executrix and executor of the estate. It is contended by the defendant that, upon the final distribution of the estate and discharge of plaintiffs as executrix and executor, they ceased to have capacity to further maintain this action. Comp. Laws Utah 1917, § 6513, provides:

"An action or proceeding does not abate by the death or any disability of a party, or by the transfer of any interest therein, if the cause of action or proceeding survive or continue. In case of the death or any disability of a party, the court, on motion, may allow the action or proceeding to be continued by or against his representative or successor in interest. In the case of any other transfer of interest, the action or proceeding may be continued in the name of the original party, or the court may allow the person to whom the transfer is made to be substituted in the action or proceeding."

Upon distribution this cause of action passed to the distributees, and defendant, therefore, was not entitled to have the action dismissed. Nor may defendant be heard to insist that the trial court should have ordered a substitution of the distributees for the executrix and executor. No motion was made for a substitution, and hence no error can be predicated upon the court's failure to order a substitution. The rule announced by this court in the cases of Firman v. Bateman, 2 Utah 268, and National Bank of the Republic v. Hapgood, 9 Utah 85, 33 P. 241, support this view. To the same effect is 1 C. J. § 227, pp. 145, 146, and cases cited in the footnote.

It is next urged that the trial court erred in refusing to submit to the jury defendant's claim of a set-off on account of it being deprived of the use of the leased premises during a part of the month of...