Hunter v. Porter

• Decision Date: 27 May 1904
• Parties: HUNTER v. PORTER
• Court: Idaho Supreme Court

77 P. 434

10 Idaho 72

HUNTER v. PORTER

Supreme Court of Idaho

May 27, 1904

NOTICE TO PAY RENT OR SURRENDER POSSESSION-OPTION TO TERMINATE LEASE-UNLAWFUL DETAINER-DEFENSES IN UNLAWFUL DETAINER-COUNTERCLAIM-CROSS-COMPLAINT-WHEN EACH AVAILABLE-BREACH OF COVENANT BY LESSOR-IMPLIED COVENANT OF FITNESS OF PREMISES.

1. A notice by the landlord to his tenant under sections 5093 and 5094, Revised Statutes, requiring him to pay rent due or surrender possession, describing the premises and naming the amount due, is a substantial compliance with the statute and is held sufficient.

2. Where the lessor by the terms of a lease reserves to himself an option to terminate the lease upon service of a thirty days' notice after breach by the tenant of some covenant thereof, he is not thereby precluded from pursuing his remedy under section 5093, Revised Statutes, in case the tenant fails to pay rent when due.

3. The service of notice and commencement of action under sections 5093 and 5106, Revised Statutes, for failure to pay rent when due, does not primarily terminate or forfeit the lease, but a payment of the rent together with interest, damages found and costs at any time within five days after judgment keeps the lease alive and saves it from forfeiture.

4. Chapter 4 of title 3 of the Code of Civil Procedure, Revised Statutes of 1887, provides a "Summary Proceeding for Obtaining Possession of Real Property," and an action prosecuted thereunder by the landlord for an unlawful detainer by the tenant is not subject to counterclaim or cross-complaint the same as ordinary actions.

5. In an action for unlawful detainer a claim for unliquidated damages arising out of a breach of a covenant made by the lessor is not a proper matter for counterclaim or cross-action under sections 4184 and 4188, Revised Statutes.

6. A cross-complaint under section 4188, Revised Statutes, must relate to or depend upon the contract or transaction on which the main case is founded or affect the property to which the action relates, but does not necessarily seek its relief against all or any of the original plaintiffs or defendants.

7. A counterclaim, while it must exist in favor of the defendant and against the plaintiff, may, in other respects, go further than a cross-complaint, and, if the cause of action arose on contract may set forth any other cause of action arising on a contract as a counterclaim thereto.

8. Where an agreement of lease refers to the premises demised as a "Cold Storage Building" not merely as a description of the situs but as a designation of its character, and contains a stipulation restricting its use to such articles as are ordinarily required to be stored for preservation, in such a place as is commonly known and designated as a "cold Storage Building," an implied warranty of fitness for such use and purpose will arise therefrom.

(Syllabus by the court.)

APPEAL from District Court in and for Latah County. Honorable Edgar C. Steele, Judge.

From a judgment for plaintiff and an order denying defendant's motion for a new trial, defendant appeals. Judgment for rents and possession of premises and costs is affirmed.

Affirmed.

I. N Smith, for Appellant.

It is first contended that the court erred in not granting the nonsuit. The thirty days' notice provided in the lease was not given; hence the lease has never terminated. The action for "unlawful detainer" is based upon the idea that the relation of landlord and tenant existed, but through some event--lapse of time, or breach of condition and notice--the tenancy has terminated, and notwithstanding the rights of the tenant have ceased, he still continues in possession without the consent of the landlord. There is nothing in this case that shows that the tenancy has ever terminated. The parties by their contract, fixed the time of notice of election to terminate the same, and this election was never exercised. This being true, the cause could not be maintained as an action of unlawful detainer. The time stipulated in this lease was one of the considerations thereof. Notice for that period was necessary. (18 Ency. of Law, 2d ed., pp. 113, 630; Pickard v. Kleis, 56 Mich. 604, 23 N.W. 329; Bauer v. Knoble, 51 Minn 358, 53 N.W. 805; King v. Connolly, 51 Cal. 181; Langley v. Ross, 55 Mich. 163, 20 N.W. 886.) The discussion heretofore indicated as to the covenant in this lease relative to the fitness of the premises is sustained by Wolfe v. Arrot, 10 Pa. 473, 1 A. 333. The offer to prove the circumstances surrounding the execution of this lease, the relation of the parties, each to the other, and to the subject matter of the lease, the representations at the time of the execution of the contract, and the offer of the written document shown, were proper. (Mayer v. Goldberg et al., 116 Wis. 96, 92 N.W. 556 (court is required etc.); Chicago R. I. & P. Ry. Co. v. Denver & R. G., 143 U.S. 596, 12 S.Ct. 479, 36 L.Ed. 277; Winona & St. Paul L. Co. v. Minnesota, 159 U.S. 531, 16 S.Ct. 83, 40 L.Ed. 247.) The construction of the instrument, as given by Porter heretofore set out, to the effect that "cold storage building" was an expression used to call for and require a frost-proof building, was not denied; that shows the construction which the parties placed on this document. This controls in cases of this kind. In addition, the discussion heretofore has amply shown that the parties intended this building should be a frost-proof building. ( Topliff v. Topliff, 122 U.S. 121, 7 S.Ct. 1057, 30 L.Ed. 1110.) The true intention of the parties controls. ( Home of the Friendless v. Rouse, 8 Wall. 437, 19 L.Ed. 495; Porter v. Allen, 8 Idaho 358, 69 P. 105.) Hunter undertook to do what the lease called upon him to do, i. e., to "complete" the construction of the building so it would be fit for use as a storage house. Not having done so, he is liable for the loss which followed, which was attributable to his failure to perform the plain requirements of the contract. (Swift v. East Waterloo Hotel Co., 40 Iowa 322; McCoy v. Oldham, 1 Ind.App. 372, 50 Am. St. Rep. 208, 27 N.E. 647; Culver v. Hill, 68 Ala. 66, 44 Am. Rep. 134; Young v. Collett, 63 Mich. 331, 29 N.W. 850; Bentley v. Taylor, 81 Iowa 306, 47 N.W. 59, 9 L. R. A. 772; Vaughan v. Matlock, 23 Ark. 9; Tyler v. Disbrow, 40 Mich. 415; Lane v. Pacific & I. N. Ry. Co., 8 Idaho 230, 67 P. 566; La Farge v. Mansfield, 31 Barb. 345.)

Forney & Moore and G. W. Suppiger, for Respondent.

The failure of the appellant to comply with the written demand to pay rent or surrender possession of the premises for a period of three days after service of the written demand operated as a forfeiture of the estate of the tenant. (Rev. Stats. 1887, secs. 5093, 5106; Brummagim v. Spencer, 29 Cal. 662.) The pleading of the appellant designated a "cross-complaint" is a counterclaim, under the statutes, the same being an alleged cause of action existing in favor of the appellant, who was defendant below, and against the respondent, who was plaintiff below. ( Stevens et al. v. Home Savings etc. Assn., 5 Idaho 741, 51 P. 986.) This being a special proceeding for the summary possession of real property, the counterclaim set up in appellant's alleged cross-complaint is not permissible. (Moroney v. Hellings, 110 Cal. 219, 42 P. 560; Kelly v. Teague, 63 Cal. 68; Van Every v. Ogg, 59 Cal. 563; Warburton v. Doble, 38 Cal. 619; Phillips v. Lodge No. 6, F. & A. M., 8 Wash. 529, 36 P. 476; Ralph v. Lomer, 3 Wash. 401, 28 P. 760; McSloy v. Ryan, 27 Mich. 109 (Cooley) .) Even if the description of the building contained in the lease should be held to be a warranty of the fitness of the building demised, and if, before storing apples therein, the building was known, by the appellant, to be unfit for the storage of apples, and the appellant proceeded to store his apples therein and suffered loss by reason of the unfitness of the building, he is guilty of contributory negligence and cannot recover, or at least the law of avoidable consequences should apply. (1 Sedgwick on Damages, sec. 209.) This brings us to a consideration of a proposition of law which, in our opinion, is decisive of quite, if not all, of the errors assigned by the appellant. Our laws relating to unlawful detainer were taken from the statutes of California, and while the California statutes relating to this subject that have been construed by the court in the citations to follow have not been couched in the same language, they were identical in scope, object and intent. In the case of Warburton v. Doble, 38 Cal. 619, the supreme court of California in 1869, through Mr. Justice Rhodes, said: "A setoff or counterclaim is not admissible in actions of this class, and it makes no difference whether it be a demand for money or a previous forcible entry of the plaintiff." This action was in forcible entry and detainer, but was prosecuted under the same summary proceedings for the possession of the property that the respondent prosecuted the case at bar in the lower court. ( Kelly v. Teague, 63 Cal. 68; Borden v. Sackett, 113 Mass. 214; Moroney v. Hellings, 110 Cal. 219, 42 P. 560.)

AILSHIE, J. Sullivan, C. J., and Stockslager, J., concur.

OPINION

AILSHIE, J.

On the twenty-third day of August, 1901, the plaintiff and defendant entered into a written agreement of lease, whereby the plaintiff let to the defendant a cold storage building in the city of Kendrick, Latah county, for a period of one year. It was agreed that in addition to doing certain work and making certain improvements the lessee should pay the sum of $ 300 as rental for the premises; $ 100 to be paid on or before the fifteenth day of September, 1901, and $ 200 on or before the fifteenth day of January, 1902. Defendant, the lessee entered into possession of the...