Lyle v. Ginnold, 24349.
| Decision Date | 14 August 1933 |
| Docket Number | 24349. |
| Citation | 24 P.2d 449,174 Wash. 104 |
| Parties | LYLE v. GINNOLD et ux. |
| Court | Washington Supreme Court |
Department 2.
Appeal from Superior Court, King County; Kazis Kay, Judge.
Action by Erven Lyle against C. C. Ginnold and his wife. Judgment for plaintiff, and defendants appeal.
Affirmed and remanded.
Charles H. Graves and Harroun, Maloy & Shidler all of Seattle, for appellants.
Spencer Gray and Bogle, Bogle & Gates, all of Seattle, for respondent.
Plaintiff Erven Lyle, and defendant C. C. Ginnold were friends of long standing, the former being an experienced restaurant operator. During the fall of 1930 plaintiff entered into a written lease covering space in the National building Seattle, to be used for restaurant and kindred purposes. The lease was for three years, calling for a montherly rental of $75 for the first six months, $150 for the next year, and $200 for the balance of the term. A $200 deposit, required to secure faithful performance of the lease, was made by plaintiff. Plaintiff commenced to operate a restaurant in the premises, and defendant used a portion thereof for a cigar stand.
During the spring of 1932, plaintiff, contending that defendant was his tenant under a month-to-month tenancy, served upon defendant a notice terminating such tenancy as of June 30th following. Defendant refusing to vacate the premises plaintiff brought this action against defendant and his wife, seeking restitution thereof. By their answer defendants denied the material allegations of plaintiff's complaint, and particularly that defendants were plaintiff's tenants. Defendants further alleged that the lease of the entire premises in which plaintiff was named as sole lessee was by plaintiff in fact obtained for the joint benefit of plaintiff and defendants, and that defendants were entitled to maintain possession of the cigar stand during the term of the lease upon payment of one-half of the rentals due thereunder, which sums they had paid up to and including the month of June. Defendants pleaded facts which they contend constitute an equitable estoppel against plaintiff's action.
The case was tried to a jury, which returned a verdict in plaintiff's favor fixing plaintiff's damages for wrongful detention of the premises in the sum of $200, approximately $100 per month for the period from July 1st to the date of trial. From a judgment entered in plaintiff's favor upon this verdict, defendants appeal.
Appellant C. C. Ginnold will hereinafter be referred to as though he were the sole appellant herein. He assigns error upon certain rulings of the trial court in connection with the admission of evidence, upon the giving of three instructions, upon the refusal to give two instructions requested by appellant, upon the denial of appellant's motion for judgment in his favor notwithstanding the verdict or in the alternative for a new trial, and upon the entry of judgment against him.
Appellant also contends that the verdict of the jury is against the law and the great preponderance of the evidence.
It is true that the evidence is in many particulars conflicting, but it cannot be held that as to matters in dispute the verdict is not supported by competent evidence and should be set aside.
At the conclusion of the testimony, respondent's counsel made this statement: 'At this time let the record show that the plaintiff waives all damages alleged in paragraph 4 of his complaint, with the exception of reasonable rental value from the period of termination of tenancy to the present time, in the sum of $200, which amount the court in his judgment, if the jury finds that amount, should double in accordance with the statute.'
In view of all the evidence, it must be held that the verdict in respondent's favor is within the evidence, and we cannot hold, as contended by appellant, that certain of respondent's testimony as to other matters of possible damage must be held to have influenced the verdict. Respondent's waiver of all such items of damage is clear, and by its instructions the trial court told the jury that they could bring in no verdict in plaintiff's favor in excess of $200, and the verdict conforms to this instruction.
The question is, then, whether the amount of damages as fixed by the jury is supported by competent evidence as to the fair market rental value of the premises occupied by appellant from July 1, 1932, until September 8 following, the date of the trial. Owens v. Layton, 133 Wash. 346, 233 P. 645.
Respondent himself testified as to the rental value of the space occupied by appellant, stating that such value was $100 per month. Appellant objected to this testimony on the ground that it did not appear that respondent was qualified to testify concerning such value. Appellant, while conceding the rule as laid down by this court in the case of Port Townsend Southern R. Co. v. Nolan, 48 Wash. 382, 93 P. 528, to the effect that the owner of property occupies a different position thereto than does a mere stranger when the question of value is being considered, relies upon the language in that opinion to the effect that the owner 'must in all cases show at least some qualification Before testifying to its value.' Respondent had himself negotiated for the lease and procured the same, and was personally in possession of the premises, conducting a restaurant thereon.
Under the rule laid down in the case cited, respondent's testimony was competent. He was, of course, an interested party, and the jury could consider his testimony in the light of this fact. Appellant was paying $100 a month for the privilege of occupying the premises, and testified that he offered to pay $150 a month as rent therefor. The rule that the owner of premises may testify as to the market value thereof if he is familiar therewith is stated in 22 C.J. 586, title Evidence, § 685. Appellant had the privilege of cross-examining respondent as to his qualifications to testify concerning the value of the use of the premises occupied by appellant, and we find no error in connection with this phase of the case.
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...on Evidence, 3rd Ed., Vol. III, Sec. 714; Hellstrom v. First Guaranty Bank, 54 N.D. 166, 209 N.W. 212, 45 A.L.R. 1487; Lyle v. Ginnold, 174 Wash. 104, 24 P.2d 449; Sacramento Suburban Fruitlands Co. v. Soderman, 9 Cir., 36 F.2d 934; Kerr v. Great Atlantic & Pacific Tea Co., 129 Me. 48, 149 ......
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