McLennan v. Grant

• Decision Date: 21 April 1894
• Citation: 8 Wash. 603,36 P. 682
• Parties: MCLENNAN ET AL. v. GRANT ET AL.
• Court: Washington Supreme Court

36 P. 682

8 Wash. 603

MCLENNAN ET AL. v. GRANT ET AL.

Supreme Court of Washington

April 21, 1894

Appeal from superior court, Clallam county; James G. McClinton Judge.

Forcible entry and detainer by William McLennan and Mary Ann MacKay against J. M. Grant, James E. Harlow, and F. A. Kemp. Judgment for defendants. Plaintiffs appeal. Reversed.

Benton Embree (John Trumbull, of counsel), for appellants.

Geo. C Hatch and W. R. Gay, for respondents.

ANDERS J.

The appellants brought this action, under the unlawful detainer act, to recover from the respondents possession of certain real estate situated in the city of Port Angeles, described in the complaint as follows: "Beginning at a point on the northerly side of Front street, in said city, fifty feet in a westerly direction from the intersection of the northerly side of said Front street with the westerly side of Laurel street, in said city; thence, in a westerly direction, along the northerly side of Front street twenty-five feet; thence, at right angles, in a northerly direction, about two hundred feet; thence, at right angles in an easterly direction, twenty-five feet; thence, at right angles, in a southerly direction, to the place of beginning,-embracing all of the lands north of said Front street upon which improvements are made." The complaint alleges that on the 1st day of February, 1889, the plaintiffs, being in possession of the property above described, entered into a certain contract or lease with one William Smythe and one Harry Coventon, whereby they agreed to demise, lease, and rent unto said Smythe and Coventon, for the term of three years from the 1st day of March, 1889, up to and including the last day of February, 1892, the above-described lands and premises; said lease or contract being in the words and figures following, to wit: "Port Angeles, W. T., February 1st, 1889. For value received in advance, we, William McLennan and Mary Ann McLennan, hereby agree to rent to William Smythe and Harry Coventon the house on Front street, next to the Colony or Tourist Hotel, corner of Front and Laurel streets, Port Angeles, W. T., with entire possession of the same, and all privileges and rights pertaining thereto, from first day of March, 1889, for three years, ending last day of February, 1892, and the building to be kept in good repair. If the above place is for sale within three years from the date of entry, the above-named persons, William Smythe and Harry Coventon, are to have the preference right to buy." This agreement was signed by appellants and Smythe and Coventon, witnessed by two witnesses, but not acknowledged. The complaint further alleges that in December, 1889, Smythe and Coventon sold and assigned all their right, title, and interest, by virtue of said lease, in and to said premises, to J. A. Rex & Sons, and that thereafter, and before the termination of the said lease, Rex & Sons sold and assigned all their right, title, and interest therein to the respondent J. M. Grant, who thereupon entered into the possession of said premises, both in person and by his subtenants, Harlow and Kemp, and refused to surrender such possession to the appellants after the expiration of said term. It is also alleged that Smythe and Coventon entered into the possession of said premises in accordance with the terms of said contract. The respondents answered by denying each and every of the allegations of the complaint, and upon these issues the cause was tried by a jury, resulting in a verdict and judgment for the defendants.

In support of the judgment, the respondents seem to contend that the lease was void for uncertainty of description, and also that there was not sufficient proof that the premises in possession of the respondents were the premises mentioned in said lease. But we are of the opinion that neither of these propositions can be sustained. We think the testimony clearly shows that the premises mentioned in the lease are the same premises in controversy in this action. It is well settled that parol evidence is admissible to identify the subject-matter of a contract, and such testimony was properly admitted in this case; and, besides, the testimony also shows that Smythe and Coventon entered into possession under their contract, and, that being true, they could not have repudiated the lease merely because of uncertainty in the description of the premises. Their taking possession of, and occupying and using, the premises, showed that they fully understood what property was intended to be leased. Bulkley v. Devine, 127 Ill. 406, 20 N.E. 16. And if they are estopped their assignees are also estopped, for the same reason. The testimony of the appellants shows that on the 1st day of February, 1889, and for some time prior thereto, they were in possession of certain buildings situated upon the lot described in the complaint, such lot being a portion of the water-front property in the said city of Port Angeles; that the said Smythe and Coventon proposed to appellants to lease the lot in question, and that they (Smythe and Coventon) be permitted to tear down the buildings upon the said lot, and erect another building thereon, of the value of not less than $500, and of which they (Smythe and Coventon) should have possession for the term of three years. This proposition was accepted by the appellants, and thereupon the written contract above set forth was signed by all of the said parties; and Smythe and Coventon proceeded to tear down the buildings thereon, and to erect the new building which had been agreed upon, which building, when completed, they occupied and used as a lodging house and restaurant for some months thereafter. This testimony of the appellants is substantially corroborated by both Smythe and Coventon.

The first question to determine is whether the relation of landlord and tenant existed between the appellants and respondents at...