Himpel v. Lindgren

• Decision Date: 06 October 1930
• Docket Number: 22584.
• Citation: 291 P. 1085,159 Wash. 20
• Parties: HIMPEL v. LINDGREN.
• Court: Washington Supreme Court

291 P. 1085

159 Wash. 20

HIMPEL v. LINDGREN.

No. 22584.

Supreme Court of Washington

October 6, 1930

Department 1.

Appeal from Superior Court, Clark County; Geo. B. Simpson, Judge.

Unlawful detainer action by Ella Himpel against Charles G. Lindgren. From a judgment in favor of defendant, plaintiff appeals.

Affirmed.

John Wilkinson, of Vancouver, for appellant.

Waldemar Seton, of Portland, Or., and Bates & Burnett, of Vancouver for respondent.

PARKER J.

The plaintiff, Mrs. Himpel, commenced this unlawful detainer action in the superior court for Clark county seeking recovery of possession of her dairy farm in that county from the defendant, Lindgren. He had gone into possession of the farm under a lease contract with her. Her claimed right to be restored to possession is rested upon the theory that the tenancy was, in legal effect, only orally created, and was only from year to year, and that she lawfully terminated it by appropriate notice to Lindgren prior to commencing this action. His claimed right to retain possession is rested upon the theory that the tenancy was created by written contract between them for a term of four years; which contract, though voidable as a lease for more than one year because unacknowledged, became in law and equity a valid binding lease contract for that term by virtue of part performance. The cause proceeded to trial before the court sitting with a jury, and resulted in verdict and judgment denying to Mrs Himpel the relief sought by her, and awarding to him the continued right of possession under the lease as a tenant for the term of four years. From this disposition of the case in the superior court, Mrs. Himpel has appealed to this court.

On June 21, 1928, Mrs. Himpel entered into a lease contract in writing with Lindgren, by the terms of which she leased to him her dairy farm in question, including the live stock and equipment thereon, for a stated term of four years from July 1, 1928. This lease contract was legally executed by both of them in all respects, except that its execution was not acknowledged as required by law. The rent stipulation of the lease reads as follows: 'The Lessee agrees to pay as rent for said premises by his work and labor in conducting said farm according to good husbandry; that he will care for all cattle and other animals upon said place to the best advantage and that he will pay to the Lessor fifty per cent of all profits accruing out of the operation of said premises and cattle, and that he will, each month, account to the Lessor for all receipts during the preceding month; and that the Lessor, in addition to receiving fifty per cent of the net proceeds of the operation of the farm, shall also receive fifty per cent of all increase in stock now or hereafter on said premises.' On June 27, 1928, Lindgren moved, with his family, into the dwelling house upon the farm, and proceeded with the performance of his part of the lease contract, accounting for the profits from that date, which was regarded by him and Mrs. Himpel as the commencement of the term of the tenancy, though the lease stated July 1 1928, as the commencement of the term. On May 29, 1929, Mrs. Himpel caused to be served upon Lindgren notice of her declared termination of the tenancy on July 27, 1929, and demanded that he then surrender to her possession of the leased property. Mrs. Himpel's claimed right so demanded was rested upon the theory that the written lease contract, being unacknowledged, constituted in law nothing more than an oral lease from year to year which could be by her terminated by notice upon the expiration of any year period of such indefinite term. Lindgren refused to comply with that notice and demand, his claimed right of continued possession during the four year term being rested upon part performance upon his part, of the lease contract, in the form of things done and labor performed by him as contemplated by the contract, the benefits of which would be in a large measure lost to him unless he reap the benefits of the full four-year term; which things done and labor performed by him also contributed to the increased value of the farm. On July 9, 1929, Mrs. Himpel commenced this action in the superior court. The controversy there waged was practically wholly upon the question of Lindgren's defense of part performance and the estoppel arising therefrom as against Mrs. Himpel's claimed termination of the tenancy at the end of the first year.

It is first contended in behalf of Mrs. Himpel that, Lindgren's defense of part performance and the estoppel thereby arising as against her being in its nature equitable and not strictly legal, such defense was not available to him in this unlawful detainer action. In this connection, it is to be remembered that this is not a question of 'forcible entry,' as defined by section 810, Rem. Comp. Stat., or 'forcible detainer,' as defined by section 811, Rem. Comp. Stat. but is a question of 'unlawful...