Noon v. Mironski

• Decision Date: 24 May 1910
• Citation: 108 P. 1069,58 Wash. 453
• Parties: NOON et ux. v. MIRONSKI.
• Court: Washington Supreme Court

108 P. 1069

58 Wash. 453

NOON et ux. v. MIRONSKI.

Supreme Court of Washington

May 24, 1910

Department 2. Appeal from Superior Court, King County; Boyd J. Tallman Judge.

Action by Thomas A. Noon and wife against J. C. Mironski. From a judgment for defendant, plaintiffs appeal. Affirmed.

Byers &amp Byers, for appellants.

Elias A. Wright, for respondent.

DUNBAR J.

The appellants leased a storeroom in the city of Seattle to the respondent for the purpose of conducting a bakery. The respondent conducted a bakery for some time, and finally began to sell some groceries in connection with the bakery; at least, this is the allegation of the complaint, and for the purposes of this case we may assume it to be true. The respondent was notified to quit keeping groceries for sale, and there was some discussion backwards and forwards between them on the subject. The appellants gave him notice to vacate the premises, and, upon his failure to do so, brought suit of forcible entry and detainer, and, upon the failure of the respondent to file a bond, he was evicted, and possession of the premises given to appellants. The respondent then filed his amended answer, in which he denied keeping groceries excepting with the assent of the appellants. A reply was interposed, and the case went to trial. Appellants introduced their evidence in chief and respondent introduced his evidence, and evidence was introduced in rebuttal, when the respondent interposed a motion for an instructed verdict on two grounds: First, that the attempted restriction in the lease for bakery purposes was not exclusive, and that the respondent was entitled to conduct any lawful business in the storeroom. The second ground for the motion was not considered by the lower court, and will not be here. This motion was by the court granted, and the jury instructed to return a verdict for the respondent. Thereafter the respondent filed a cost bill in which, among other items, he taxed a witness fee for Pauline Mironski, wife of the respondent. Appellants filed their motion to strike from the cost bill the item taxes as a fee for the wife of respondent, and this motion was by the court denied. The errors assigned are the refusal of the court to deny the motion in regard to the costs, and in sustaining the motion for an instructed verdict.

That portion of the lease upon which the appellants base their claim is as follows: 'That the lessor, in consideration of the covenants of said lessee hereinafter set forth, does by these presents lease and demise unto the said lessee the following described property: * * * For the purposes of conducting a bakery therein.' This is all that is said in regard to the restriction. There is in every lease, in the absence of express covenants to the contrary, an implied obligation on the part of the lessee to use the property lawfully and for lawful purposes, and to so use it as not unnecessarily to injure it, or to unnecessarily injure the inheritance. But in the absence of special restrictions in the lease the rule does not extend further. The general rule is announced in 18 Am. & Eng. Enc. Law, at page 634, as follows: 'During the existence of the lease a lessee is for all...