Kelley v. Cohen

• Decision Date: 01 May 1929
• Docket Number: 21564.
• Citation: 277 P. 74,152 Wash. 1
• Parties: KELLEY et ux. v. COHEN.
• Court: Washington Supreme Court

277 P. 74

152 Wash. 1

KELLEY et ux. v. COHEN.

No. 21564.

Supreme Court of Washington

May 1, 1929

Department 2.

Appeal from Superior Court, King County; Calvin S. Hall, Judge.

Action by James T. Kelley and wife against Samuel Cohen, on whose death Sarah Cohen, as executrix of his estate, was substituted as party defendant. From the judgment, defendant appeals. Affirmed.

J. A Kalina and T. M. Royce, both of Seattle, for appellant.

Wright Froude, Allen & Hilen, of Seattle, for respondents.

FRENCH J.

Respondents owned certain property located at the southeast corner of Sixth avenue and Pine street in the city of Seattle, Wash and in July, 1926, the respondents leased this property to James K. McDowell for 99 years. Mr. McDowell assigned his lease to the Queen City Building Company which he owned, controlled, and managed. One Samuel Cohen had for several years been a tenant occupying a storeroom in building located on this property. Mr. Cohen had paid his rent either to respondents or to the Queen City Building Company for all the time of his occupancy of the storeroom, except for the months of January, February, and March, 1927. During the month of March, 1927, the Queen City Building Company surrendered its lease to respondents, and also assigned to the respondents the rentals due from Samuel Cohen. Thereafter Samuel Cohen vacated the premises and removed certain fixtures therefrom, and this action was commenced to recover the back rentals and to recover damages for the depreciation of the building caused by the removal of such fixtures. Pending the hearing of the case Mr. Cohen died, and his executrix, Sarah Cohen, was substituted as party defendant.

Appellant's defense was that in December, 1926, Samuel Cohen, deceased paid a lump sum to the company under an agreement whereby he was to be allowed to remain in the premises without further rent until the company should tear down the building. She also denied that the fixtures removed were the property of respondents, and furthermore that no damage had been done to the building in the removal thereof. The case was tried before the court with a jury, and this appeal follows from a judgment entered on the jury's verdict.

The first three assignments of error made by appellant relate to the court's instructions. Rule VI adopted by this court on January 14, 1927, reads as follows: 'Exceptions to a charge to a jury, or to a refusal to give as a part of the charge instructions requested in writing, may be taken in the absence of the jury by any party at the conclusion of the charge and before reception of the verdict. Such exceptions may be either oral or in writing, and shall be noted by the court, and shall specify the paragraphs or particular parts of the charge excepted to, and the requested instructions the refusal to give which is excepted to, and shall be sufficiently specific to appriase the judge of the points of law or questions of fact in dispute.'

Defendant's exceptions are entirely general in their nature, and do not in any way specifically point...