Myers v. Western Farmers Ass'n, 39565
| Decision Date | 03 January 1969 |
| Docket Number | No. 39565,39565 |
| Citation | 75 Wn.2d 133,449 P.2d 104 |
| Court | Washington Supreme Court |
| Parties | M. E. MYERS and Lenore G. Myers, his wife, Respondents, v. WESTERN FARMERS ASSOCIATION, a corporation, and Harry Higgins and June Higgins, his wife, Appellants. |
R. Maurice Cooper, Spokane, MacBride & Sax, Kenneth G. Burrow, Seattle, for appellants.
Randolph S. Palmer, Quincy, for respondents.
On September 20, 1957, the respondents entered into a written lease, prepared by the lessors, which contemplated that a building to be constructed by the respondents would be used as a hardware store, but did not expressly require it, and which provided for a flat minimum rental plus a percentage of the profits.
On October 31, 1960, the respondents consented to an assignment of the lease to the appellants Higgins, reserving their rights against the original lessee. Shortly thereafter, the appellant Western Farmers Association purchased the rights and succeeded to the liabilities of the original lessee.
On September 4, 1965, without any notification to the respondents, the appellants Higgins vacated the leased premises and moved their hardware business to another location, where they continued as hardware merchants.
The respondents asked for the keys to the vacated premises, and when the appellants Higgins were unable to locate all of them, the respondents told them that they would have the locks changed. This was done, and a key was left with the respondents' attorney for the use of the appellants.
The appellants Higgins paid the rent for the month of October 1965 but did not pay any rent thereafter. The respondents notified the appellant Western Farmers Association that they would hold that association liable for the rent. They also endeavored, without success, to find another tenant for the building.
This action for the unpaid rent and for reimbursement for repairs was commenced August 26, 1966. The Western Farmers Association cross-complained against the appellants Higgins, its assignees. The trial court gave judgment for the respondents against both appellants for the accrued basic rental and override and for the basic rental for the balance of the term, as well as for the amount of the alleged repairs. Western Farmers Association was given judgment over against the appellants Higgins.
The first contention on appeal is that the trial court erred in refusing to find that the appellants Higgins were constructively evicted when the respondents changed the locks on the doors.
A constructive eviction occurs when there is an intentional or injurious interference by the landlord or those acting under his authority, which deprives the tenant of the means or the power of beneficial enjoyment of the demised premises or any part thereof, or materially impairs such beneficial enjoyment. Coulos v. Desimone, 34 Wash.2d 87, 208 P.2d 105 (1949). Whether there has been such an eviction is, of course, generally a question of fact to be determined by the trier of the facts.
The only evidence which would tend to show a constructive eviction was the evidence that the respondents had the locks changed after the appellants Higgins had moved out of the leased premises. The respondent husband testified that he did so because there were outstanding keys which the appellants Higgins could not account for; also, that he figured that the appellants Higgins had abandoned the sublease and that the lease had reverted back to the Western Farmers Association. He testified further that he offered a key to an officer of the association, who said that he would rather that the key were left with the respondents' attorney.
While the appellant husband testified that he had intended to use the premises for the sale of certain items, he did not suggest that he had made this intention known to the respondents or ever asked for access to the building for any purpose, except on one occasion when he was showing fixtures to a prospective purchaser. On another occasion he gave permission to a group of citizens to use the store for an art show.
The evidence showed that the...
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