Pappas v. Zerwoodis
| Decision Date | 10 November 1944 |
| Docket Number | 29409. |
| Citation | 153 P.2d 170,21 Wn.2d 725 |
| Parties | PAPPAS v. ZERWOODIS et ux. |
| Court | Washington Supreme Court |
Department 1.
Action by John Pappas against James Zerwoodis and his wife for specific performance of defendants' covenant to repair a building leased by plaintiff and for damages alleged to have been sustained by the plaintiff becaused of the breach of such covenant. From a judgment for defendants, plaintiff appeals.
Affirmed.
Appeal from Superior Court, King County; James T. Lawler, judge.
Christ D. Lillions, of Seattle, for appellant.
Wm. V Cowan, of Renton, for respondent.
The lessee of a building brought suit for specific performance of the lessors' covenant to repair and also for damages alleged to have been sustained by the lessee because of the lessors' breach of that covenant. Some time after the commencement of the action, but prior to the time of the trial, the lessors repaired and also repainted the building, and at the hearing Before the superior court the lessee conceded that his claim for specific performance had been fully satisfied. The trial therefore proceeded upon the issue of damages alleged to have been sustained by the lessee because of the lessors' earlier breach of the covenant, in that they had not made the repairs sooner than they did. At the conclusion of the trial and after taking the cause under advisement, the trial court rendered a memorandum opinion and subsequently entered judgment dismissing the action, but without costs to either party. The plaintiff lessee appealed.
Respondent lessors are the owners of certain premises situated at the junction of three highways near the city of Renton. On August 16, 1939, they leased the premises, including the building thereon and the equipment therein, to the appellant for use as a restaurant, tavern, and dance hall, for a term of three years beginning October 1, 1939, at a rental of ninety dollars a month. The lease provided that its term of existence could be extended for an additional three-year period at the option of the lessee, on the basis of a monthly rental to be agreed upon by the parties at the end of the original term, and in case of their inability to agree upon the amount of such rental it was to be determined by a committee of three arbitrators.
The lease contained a covenant reading as follows: 'It is further hereby agreed that the lessors shall keep the exterior of the building, namely roof and walls, in proper condition with necessary painting and will also be responsible for any repairs needed in the sewer connections of the said building.'
The front wall and one side wall of the building were of stucco composition and the rest of the building presumably was of the ordinary frame construction. The roof was flat, covered with an asphalt top, and was surrounded on three sides by fire walls.
At the end of the original three-year term, appellant elected to take an extension of three additional years as provided in the lease, but the parties were unable to agree upon the amount of the monthly rental for the extension period. Respondents were demanding that the rent be increased to $150 a month; appellant was insisting that it be reduced to $50. Appellant was operating the place at that time simply as a tavern and dance hall, where bber, wine, and soft drinks were sold and where dances were held two nights a week, but no meals were then being served. It appears also that for some time past appellant had been complaining that the roof of the building leaked and that the exterior needed painting.
The parties being unable to come to any satisfactory agreement three arbitrators were selected, in the manner provided in the lease, to determine the amount of the monthly rental to be charged during the period of the extension. After an inspection of the building, conferences with the respective parties, and a consultation among themselves, the arbitrators made a written report fixing the amount of such rental at $100 a month. In their report the arbitrators also expressed the view that the lessors had not fully complied with their obligations to the lessee and recommended 'that the landlord fix up the building better than he has in the past; that is fix the roof; and keep the place in repairs.' It appears, however, that shortly Before the arbitrators made their report, respondents had put a new asphalt covering on the roof at an expense of $100, although they had not done anything in the way of painting during the entire term of the lease.
Pursuant to the report of the arbitrators, the lease was extended and appellant periodically paid the increased rental of $100 a month. He continued to make complaint, however, regarding the condition of the roof and exterior walls of the building, and respondents endeavored from time to time to make the roof water-tight, but did not immediately paint the exterior. Considerable ill-feeling thus seems to have been engendered between the parties, culminating in the institution of this action by the appellant in July, 1943, which was about nine months after the commencement of the extended period of the lease.
In his complaint, as amplified by a bill of particulars, appellant alleged that respondents had breached their covenant to repair by allowing the roof of the building to remain in a leaky condition, with the result that in the rainy season water frequently dripped in various spots upon the dance floor and upon the tables in the adjoining booths, to the great discomfort and annoyance of his patrons, and that respondents had further breached their covenant by failing to paint the exterior of the building, in consequence of which the place had a dilapidated appearance, causing many of his customers to discontinue their patronge. The complaint further alleged that the damages resulting from the respondents' failure to perform the abovementioned covenant of the lease amounted to 'approximately $10.00 per day,' and recovery in that amount was asked. The prayer of the complaint also asked for specific performance of the covenant of the lease. In their answer to the complaint respondents denied in toto appellant's allegations respecting breach of covenant and consequent damage.
Inasmuch as the action in its inception was a suit in equity for specific performance of the covenant to repair, the trial court was not required to, and did not, make findings of fact. The court did, however, render a memorandum opinion, in which it carefully reviewed and analyzed the evidence and gave a summary of the facts as, in the opinion of the court, they appeared to be established by the evidence. While there is some conflict in the testimony, the material facts are not greatly in dispute. Our view of the factual situation coincides with that expressed by the trial court and may be briefly stated as follows:
About the time of the expiration of the original term of the lease in 1942, a dispute arose between the parties concerning the amount of monthly rent to be charged during the extended term. On account of the outbreak of the present world war and the construction of various government works and other projects in and near Renton, there had been a great influx of people in the immediate vicinity of the premises here involved. For that reason respondents were demanding that the rent for the extended term be increased from $90 a month to $150. Appellant, on the other hand, was insisting that the premises were worth not more than $50 a month. Among other reasons given by the appellant for demanding a reduction in rent were the alleged physical condition and appearance of the building. Appellant complained of the shabby appearance of the place due to the fact that the building had not been painted for five or six years. He also complained that the roof leaked in several places, allowing water to drop onto the dance floor and booths at various spots. Respondents endeavored to repair the roof and during the late summer or early fall of 1942 spent about a hundred dollars in that effort, but did not at that time do anything toward having the building painted.
The parties being unable to come to any satisfactory agreement, a committee of arbitrators was selected and the matter of rent was submitted to them for decision. After listening to the contentions of both parties and also investigating the premises, the committee on October 13, 1942, made its report fixing the rental for the extended term at $100 a month and recommending that respondents fix up the building better than they had done in the past, particularly with reference to the roof.
Throughout the fall and winter of 1942, and the early part of 1943, appellant continued to make complaint that the roof leaked, at times causing water to drip in spots upon the dance floor and upon the tables in the booths. It was testified that on one occasion it was necessary to set out pans to catch the dripping water, and also to move the patrons who were seated at one of the tables to another part of the room. Frequently there were wet spots upon the ceiling and on one of the walls of the building. However, it does not appear that there was ever any actual interruption of appellant's business, nor was he ever compelled to close the place, even temporarily.
In response to appellant's complaints concerning the roof respondents endeavored from time to time to remedy the situation. As stated above, just shortly Before the arbitrators made their report in October, 1942, respondents had put a new asphalt coating on the roof at an expense of $100. Apparently, however, this did not fully terminate the trouble, at least not to the appellant's entire satisfaction. At any rate he continued to make complaint throughout the latter part of 1942 and...
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Tiegs v. Boise Cascade Corp.
...the property had they remained in possession. Woodward, 36 Wash.2d at 40, 216 P.2d 228. Similarly, the court in Pappas v. Zerwoodis, 21 Wash.2d 725, 735, 153 P.2d 170 (1944) held the tenant had not shown with a reasonable degree of certainty the profits allegedly lost by the tenant's busine......
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501 DeMers, Inc. v. Fink
...loss to him which is the direct and proximate result of the breach complained of. 28 A.L.R.2d § 34, p. 492. Pappas v. Zerwoodis (1944), 21 Wash.2d 725, 153 P.2d 170, held that proof of prospective profits is insufficient to permit Viewing all of the evidence, the trial court concluded that ......
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Woodward v. Blanchett
... ... See ... Shoe-maker v. Crawford, 82 Mo.App. 487; Carlson ... v. Bain, 116 Colo. 526, 182 P.2d 909. In Pappas v ... Zerwoodis, 21 Wash.2d 725, 153 P.2d 170, we stated the ... general rule with respect to the recovery of special damages, ... ...
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§17.6 - Repairs and Improvements
...repair covenant is the difference in rental value between the premises in good repair and in the state of disrepair. Pappas v. Zerwoodis, 21 Wn.2d 725, 153 P.2d 170 (1944). As an alternative, a tenant may make the repairs and recover, or set off against rent, their reasonable cost. Thomson ......
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Table of Cases
...1057 (1982): 17.7(2)(b)(i) Pappas v. General Mkt. Co., 104 Wash. 116, 176 P. 25 (1918): 17.3(2)(a), 17.3(2)(d)(i) Pappas v. Zerwoodis, 21 Wn.2d 725, 153 P.2d 170 (1944): 17.6(2) Paris American Corp. v. McCausland, 52 Wn.App. 434, 759 P.2d 1210 (1988), review denied, 111 Wn.2d 1034 (1989): 1......