Munson v. Baldwin

• Decision Date: 06 December 1915
• Docket Number: 12895.
• Citation: 153 P. 338,88 Wash. 379
• Parties: MUNSON v. BALDWIN et al.
• Court: Washington Supreme Court

153 P. 338

88 Wash. 379

MUNSON v. BALDWIN et al.

No. 12895.

Supreme Court of Washington

December 6, 1915

Department 2. Appeal from Superior Court, King County; John R. Mitchell Judge.

Action by Mark Munson against Pauline P. Baldwin and another. Judgment for defendants, and plaintiff appeals. Affirmed.

Roney & Loveless, of Seattle, for appellant.

Wm Hickman Moore, of Seattle, for respondents.

HOLCOMB J.

Appellant sued to recover the possession of certain city warrants, or their value. Respondents denied that appellant was the owner or entitled to the possession, of the warrants, or their value. As a further and first affirmative defense respondents pleaded a former suit between respondents, as plaintiffs, and appellant and G. S. Hamman and Matilda M. Hamman, as defendants, in the superior court of King county, numbered 71528, setting forth all the records and files therein as a defense hereto. Respondents further pleaded a cross-complaint to appellant's cause of action, alleging, in substance, their right to hold the warrants under and by virtue of the terms of a lease. All the material allegations of respondents' first affirmative answer and of their cross-complaint were denied by appellant's reply, and as an affirmative defense thereto, he also pleaded the records and files in case No. 71528. There was a lease from respondents to G. S. Hamman and Matilda M. Hamman, executed July 10, 1908, for a period of four years, of a certain apartment house in Seattle, with a stipulated monthly rental of $370, payable in advance on the 10th day of each and every month during the term of the lease. The lease contained this stipulation:

'It is further covenanted and agreed that the lessees, as security guaranteeing the performance of this lease, will pay to said lessors the sum of fifteen hundred ($1,500.00) dollars, either in gold coin or collateral for the last-mentioned amount acceptable to the said lessors, said money or collateral to be held by lessors until the expiration of this lease, when, if all the conditions of said lease have been fully performed on the part of the lessees said money or collateral is to be returned; otherwise same is to be retained by the lessors on account of liquidated damages.'

It is conceded that $1,500 of city warrants were deposited by the Hammans, and received and accepted by respondents, as satisfying the above requirement of the lease. On October 11, 1909, the Hammans, with the written consent of respondents, assigned the lease to appellant. The Hammans, however, claimed to retain the ownership of the warrants, leaving them in the possession of respondents as collateral for the purposes for which they were delivered. In their written consent to the assignment of the lease, it was expressly stated that respondents----

'did not release the Hammans from any of the obligations or liabilities that have accrued, or may hereafter accrue, under the terms of the lease.'

On October 16, 1909, the Hammans sold the warrants to appellant the assignee of the lease. On November 20, 1909, respondents notified the room tenants fo the apartment building that the lessees, the Hammans, and appellant, had failed to pay two advance monthly payments of rent, and that any rental they, the room tenants, should, after such notice, pay to the lessees would be at their risk. On December 1, 1909, appellant gave respondents a counter notice, to the effect that, by reason of their notice to subtenants, and on account of the further fact that respondents had taken possession of a portion of the leased premises and leased the same to other parties, such acts constituting an interference with his beneficial enjoyment of the premises, he considered himself no longer liable for any further rent therefor, and had abandoned the premises. Thereupon respondents, on January 11, 1910, instituted the action known as cause No. 71528, against the Hammans and appellant, to recover the advance rental of $370 for each of the months of October and November, 1909, in two separate causes of action. The defendants therein appeared separately and answered the complaint. Munson, the appellant here, pleaded affirmatively an eviction, on the same grounds as stated in the notice to respondents of December 1, 1909. Respondents replied, denying eviction, admitting their notice to subtenants on November 20, 1909, and alleging abandonment by appellant on December 1, 1909. The cause was tried to the court on November 25, 1910, the court found for the plaintiffs and against the appellant and his...