Lundsten v. Largent

• Citation: 49 Wn.2d 40,298 P.2d 488
• Decision Date: 31 May 1956
• Docket Number: No. 33334,33334
• Parties: H. A. LUNDSTEN and Dora Lundsten, his wife, Respondents, v. Ross C. LARGENT and Florence D. Largent, his wife, and the marital community of which they compose, Appellants.
• Court: United States State Supreme Court of Washington

Page 40

49 Wn.2d 40

298 P.2d 488

H. A. LUNDSTEN and Dora Lundsten, his wife, Respondents, v. Ross C. LARGENT and Florence D. Largent, his wife, and the marital community of which they compose, Appellants.

No. 33334.

Supreme Court of Washington, Department 2.

May 31, 1956.

Simmons, Simmons & Yates, Seattle, for appellants.

Wright, Booth & Beresford, Seattle, Jo-Ann R. Locke, Seattle, of counsel, for respondents.

HILL, Justice.

This action was brought under the Federal Housing and Rent Act of 1947 as amended, 50 U.S.C.A.Appendix, §§ 1881-1884, 1891-1906, and the regulations issued thereunder, to recover three times the amount of certain rental overcharges, to secure the return of a lease deposit in the amount of $160, and for an attorney's fee of $200. An action of this character can be maintained against the person who 'retains' any payment of rent in excess of the maximum prescribed. 50 U.S.C.A.Appendix, § 1895.

The overcharges amounted to $20 a month for twelve months ($240) and were not seriously contested.

The overcharge being established, the plaintiffs are entitled to recover three times the amount thereof unless the defendants proved that the overcharge, or the retention thereof, was neither willful nor the result of failure to take 'practicable precautions' against the occurrence thereof. Shuh v. Oakes, 1951, 38 Wash.2d 336, 229 P.2d 507.

The defendants urge that the overcharge and the retention thereof were not willful and the damages should not be trebled; and that the plaintiffs committed waste and damaged the premises in five particulars, to the property owners' damage in the amount of $362.78. The defendants' claims about the condition in which the plaintiffs left the property when they surrendered possession are particularly important, not only on the issue of damages, but also on the issue of justification of the defendants' failure to reimburse the plaintiffs for the overcharges in accordance with the order relating thereto.

The defendants, as lessors, and the plaintiffs, as lessees, entered into a lease for a period of three years from August 10, 1950, covering a dwelling house known as 4736-1/2 University way, in Seattle. We quote the following provision from the lease, inasmuch as the right to the last two months' rent, which was paid in advance, is one of the issues in the case: 'Receipt is hereby acknowledged of Two Hundred and forty dollars, being the first and last two months [rent].'

The plaintiffs remained in possession until September 20, 1951, paying the rent for each month except the month of September, 1951. When it became necessary for them to move from Seattle, they asked and received permission to sublease the premises but were unsuccessful in their efforts so to do. Mr. Largent then agreed to release them from their obligations under the lease and to accept surrender of the premises, but refused to return any part of the last two months' rental that had been paid in advance. He immediately rented the premises, effective October 1, 1951, to another tenant, also at the rate of $80 a month.

Mr. Largent, a real estate broker of many years' experience (but retired when the case was tried), had registered all of his property used for dwelling purposes when the act in question became effective in the Seattle area. He had not registered the premises at 4736-1/2 University way at that time because they were then rented as business property. He testified that he 'overlooked' registering the property when he leased it to the plaintiffs as a dwelling in August, 1950; nor did he register it during the period of their occupancy. He first registered the property on October 16, 1951, giving the name of the then-tenant, R. Salonen, and indicating that it was first rented on October 1, 1951, thus failing to disclose the prior lease to the plaintiffs and their occupancy of the premises as a dwelling for more than thirteen months. This, together with his extensive experience as a real estate broker, was unquestionably a factor in the trial court's conclusion that he had acted willfully in failing to register the premises as he should have done in August, 1950.

On May 29, 1952, the area rental director issued an order fixing the maximum rental of the premises at $60 a month, effective as of September 10, 1950, and directing the refund, within thirty days, of any rent collected in excess of that amount. On June 2, 1952, Mr. Largent wrote the plaintiffs expressing his willingness to make reimbursement for the rental overcharges but asserting that the plaintiffs owed him a considerable amount for damages to the premises and the expenses he had incurred in making the place habitable again, and suggesting that they or their attorney discuss the matter with him or his attorney. The plaintiffs elected to discuss the matter in court, and commenced this action July 22, 1952.

The one item of damage to the defendants' property conceded by the plaintiffs was 'about a dozen dart holes' in a bedroom door. No evidence was offered as to the amount of the damage to the door.

The defendants failed to call as a witness the person to whom Mr. Largent testified he had paid $65 for cleaning the premises and who should have been in a position to corroborate Mr. Largent's testimony as to the claimed deplorable condition of the premises when the plaintiffs surrendered possession. The defendants were, therefore, in no position to complain when the trial court elected to believe the plaintiffs instead of Mr. Largent and found against the defendants on each of the five items of damage alleged in their cross-complaint. The trial court concluded that the defendants' urging of those items of damage as the basis for the adjustment of the rental overcharges was 'specious and unfounded.'

With some travail of mind and spirit, we have recognized that our courts have no discretion in the matter of entertaining actions for damages under the Federal statutes with which we are here concerned, and little discretion in the consideration of treble damages when an overcharge is established. Walker v. Gilman, 1946, 25 Wash.2d 557, 171 P.2d 797. Being convinced that Mr. Largent's failure to register the premises was willful, and that his excuses for not refunding the amount of the overcharges as directed were ...