King v. King

• Decision Date: 19 January 1915
• Docket Number: 12020.
• Parties: KING et ux. v. KING et ux.
• Court: Washington Supreme Court

145 P. 971

83 Wash. 615

KING et ux. v. KING et ux.

No. 12020.

Supreme Court of Washington

January 19, 1915

Department 2. Appeal from Superior Court, Yakima County; E. B. Preble Judge.

Action by Charles D. King and Frances A. King against George F. King and Agnie King for damages for wrongful eviction from leased premises and for conversion of personal property. From a judgment against them for $750, defendants appeal. Reversed and remanded.

George B. Holden and Englehart & Rigg, all of North Yakima, for appellants.

Snively & Bounds, of North Yakima, for respondents.

ELLIS J.

This is an action for damages for wrongful eviction from leased premises and for conversion of personal property.

On December 4, 1912, the defendants by written lease demised to the plaintiffs for a term of two years the second floor and the south room of the first floor of a two-story frame building in Toppenish, Wash., known as the 'King Rooming House,' at a rental of $60 per month. At the same time the defendants leased and agreed to sell to plaintiffs the furniture and household goods contained in the upstairs for $900, plaintiffs paying $450 down, and agreeing to pay the balance in two equal installments, as evidenced by two promissory notes for $225 each, due in 6 and 12 months respectively. By the second lease and contract of sale the defendants agreed to execute and deliver to plaintiffs a bill of sale of the furniture upon final payment of the deferred installments and interest. Under these leases the plaintiffs occupied the premises and were in possession of the furniture from December 5, 1912, to April 13, 1913. There was a conflict of evidence as to whether the rent had been paid to April 24 or to May 4, 1913.

Early in the morning of April 13, 1913, a fire was discovered in three inner and adjoining rooms on the second floor. It was of incendiary origin. Holes had been cut in the partition walls and skylights of the rooms. The furniture had been piled on the beds. Coal oil had been poured about each of the rooms, and the bed clothes were saturated with oil. Cans of oil were standing in each room. There were two roomers, Britt and Root, in the house at the time of the fire.

On April 13, 1913, defendant George King caused the arrest of plaintiff Charles King and the man Root, charging them with setting fire to the building. At the time of the fire the plaintiff, Charles King, was visiting with a friend about three miles out of the city, having left the house in Root's charge about 6:30 o'clock on the prior afternoon. His wife was in Walla Walla, where she had gone on a visit about ten days previously. There was evidence that previous to going she had stated to a friend that she expected trouble, and she seemed depressed. Before the fire her husband sent her fur coat to her. One of the defendants' witnesses testified to seeing valuable silverware and linens in a trunk in one of the rooms. These articles were not in the trunk at the time of the fire. The three rooms in which the fire occurred were securely locked and the only persons permitted to enter them were the plaintiffs and the man Root. The other roomer, Britt, heard no sounds after retiring about midnight until the time of the fire. A hatchet was discovered in an old shed on the premises having particles of plaster adhering to it of the same tint as that of the walls of the rooms. An apron belonging to the plaintiff Frances A. King was discovered in the kitchen. In a pocket of this were similar particles of plaster. She explained that they must have fallen into her pocket when she was cleaning up after certain repairs to the plastering in the hallway. The plaintiffs carried insurance on the furniture in the amount of $1,000. The defendants carried no insurance on either the building or its contents. Plaintiff and Root remained in custody until April 23, 1913, when, on preliminary examination, they were discharged, and have been at liberty ever since.

There is no direct evidence as to the damage done to the personal property in the building, but the building itself was damaged to the extent of about $500. The sheriff had the keys to the premises from the time of the fire until May 10, 1913, when he turned them over to the defendants. On or about April 24, 1913, the defendant George King and a deputy sheriff nailed up the doors to the building. The plaintiffs made no demand for possession nor any effort to re-enter the premises or take possession of the personal property subsequent to the fire. On April 24, 1913, the defendants served notice upon the plaintiffs that, by reason of the plaintiffs' breach of the terms and conditions of the two leases, and their attempt to destroy the property, they elected to terminate both leases and take possession of the real estate and personal property, and forfeit all payments made by the plaintiffs as liquidated damages. Nothing further was done with the property until in August, 1913, when defendants cleaned up the débris and personally occupied the premises as a rooming house.

On September 11, 1913, the plaintiffs commenced this action, alleging they were wrongfully evicted from the premises by defendants on April 24, 1913, and that the defendants converted the personal property included in the contract of lease and sale and certain other articles of personal property belonging to plaintiffs not so included, and claiming damages therefor. The defendants denied the allegations of the complaint, and set up, as an affirmative defense and counterclaim, that plaintiffs had attempted to destroy the property by fire, and had thereby forfeited their rights under the leases, and had abandoned the property, and prayed dismissal of the plaintiffs' action and judgment for $500, because of damages to the building by fire. At the close of the evidence both parties moved for a directed verdict in their favor respectively. Both motions were overruled. The jury returned a verdict in favor of the plaintiffs for $750. The court overruled defendants' motions for judgment non obstante and for a new trial. The defendants appeal.

The respondents have moved to dismiss this appeal on the grounds: (1) That all references in the appellants' brief are to the statement of facts and not to the abstract; (2) that the abstract does not refer to the pages of the statement of facts where the particular evidence is to be found; (3) that the abstract is a statement of conclusions, rather than a statement of what the evidence actually was; (4) that the abstract does not contain any of the instructions except those upon which claims of error are predicated.

As to the first and second grounds the respondents are equally derelict with the appellants. Their brief contains no reference to either abstract. Their supplemental abstract contains no reference to the statement of fact. We would not be justified in punishing the appellants alone for a fault shared equally by the respondents.

The third ground is not well taken. The appellants' abstract, it is true, does not quote the evidence, but states it in a clear narrative form with reasonable fullness.

As to the fourth ground, it is true the abstract contains only those instructions upon which claims of error are predicated but an examination of all the instructions as set out in respondents' supplemental abstract convinces us that the instruments...