Peoples Park and Amusement Ass'n, Inc. v. Anrooney, 27560.

• Decision Date: 05 August 1939
• Docket Number: 27560.
• Citation: 93 P.2d 362,200 Wash. 51
• Court: Washington Supreme Court
• Parties: PEOPLES PARK & AMUSEMENT ASS'N, Inc., v. ANROONEY et al.

93 P.2d 362

200 Wash. 51

PEOPLES PARK & AMUSEMENT ASS'N, Inc., v. ANROONEY et al.

No. 27560.

Supreme Court of Washington

August 5, 1939

Department 2.

Declaratory judgment action by the Peoples Park & Amusement Association Incorporated, against Florence Anrooney, administratrix of the estate of Fred Anrooney, deceased, and others, for a declaration of the rights of the parties under a lease. From an adverse judgment, the plaintiff appeals.

Affirmed.

Appeal from Superior Court, King County; Donald A. McDonald, judge.

Mark M Litchman, of Seattle, for appellant.

A. A Seijas and Hyland, Elvidge & Alvord, all of Seattle, for respondents.

MILLARD Justice.

Under the terms of a written contract executed June 10, 1933, plaintiff, a domestic non-profit corporation, leased certain real estate (People's Park, Renton Junction, King County) to Fred Anrooney for a period of ten years at a rental of seventy-five dollars monthly payable in advance on the tenth day of each and every month during the period of the lease, and received from the lessee at the time of the execution of the lease one hundred and fifty dollars as the first and last months' rental. Under one of the provisions of the contract the lessee was permitted to terminate the lease by giving a written notice to the lessor on or Before the tenth day of any month, in which event the balance (seventy-five dollars) of the one hundred and fifty dollars paid at the time of the execution of the contract was to be applied in payment of the rental for the ensuing thirty days. It was further agreed that if the lessee failed to pay the monthly rental of seventy-five dollars on or Before the tenth day of any month, the lessor 'may declare this lease forfeited' and the seventy-five dollars was to be applied in settlement of any rent then due and the balance held as liquidate damages for the lessee's breach of the contract. The lessee accepted the buildings and grounds in their then present condition and agreed to furnish and pay for the water, light and heat used by him. The lessee was further obligated under the lease to keep the buildings and grounds in a clean and sanitary condition, to use the leased premises in a lawful manner and not permit any unlawful acts thereon. In the event of damage by fire, or otherwise, to the dance pavilion or other buildings covered by the lease in excess of ten per cent of the value of the buildings, the lessee was required to restore such buildings to their original condition at his own expense. If the lessee failed to signify, within ten days after such damage, his intention, by notice in writing to the lessor, to rebuild or restore the buildings, the lessor at its option could declare the lease terminated. The lessor was required to repair any buildings damaged by fire in an amount less than ten per cent of the value of such building; and the rental ceased during the time the lessor was making the repairs. Subject to approval of the lessor, the lessee was permitted to make alterations and improvements at his own expense to the dance pavilion. Any violation of the agreement rendered the 'lease null and void.'

For four years the premises were maintained by the lessee as a park and dancing pavilion. Upon the death of the lessee, the widow, Florence Anrooney, was appointed and qualified as administratrix of the estate of her deceased husband. July 21, 1938, plaintiff gave written notice to the administratrix (who had sublet the premises to a tenant who was using the dancing pavilion for a skating rink), and to all parties interested in the estate, of cancellation of the lease between it and Fred Anrooney on the grounds that more than two months' rental was past due; that, contrary to the terms of the lease the dancing pavilion was used for skating rink purposes, and that the lessee had permitted animals to pasture on the grounds. In addition to the three foregoing reasons, the lessor advised in its notice of cancellation of the lease that the lease was void because it was indefinite as to time in that the lessee can terminate the contract at any time, and there was no consideration for the lease for a longer period than a month to month tenancy.

One week subsequent to its notice of cancellation of the lease, the lessor brought this action, under the Declaratory Judgment Act (Rem.Rev.Stat. § 784-1 to 784-17 [P.C. §§ 8108-21 to 8108-37], Ch. 113, p. 305, L.1935, as amended by Ch. 14, p. 39, L.1937), to secure a judgment declaring the lease invalid as a lease for a period of ten years; and that, if the lease be held valid for the ten-year period, it be declared cancelled by reason of the commission (by the lessee's successors in interest) of waste and two and one-half months' rental delinquency in violation of the covenant requiring payment of the stipulated rental monthly in advance.

The demurrer to the complaint upon the ground that same did not allege facts entitling plaintiff to relief under the declaratory judgment act was overruled. By their answer defendants admitted execution of the lease and succession in interest to the rights of the lessee but denied any breach of the lease. The trial court found that the estate of the deceased lessee owes to plaintiff lessor one and one-half month's rental, which is an expense of administration in the probate of the estate of the deceased lessee; that lessee did not breach the lease by permitting skating in the dance pavilion; that the lease did not contain a restrictive covenant respecting the pasturing of animals on the grounds; and that no waste was committed on the premises. The trial court concluded that the lease was a valid ten-year lease and that promissory notes in the amount of $112.50, given in payment of rental for one and one-half months, are part of the expenses of administration to be paid in the settlement of the estate of the deceased lessee. Judgment accordingly was entered. Plaintiff appealed.

Counsel for appellant contends that the lease is invalid for a ten-year period as it is a uniateral contract and lacks mutuality in that only the lessee may terminate the lease at any time and that the lessor has not the same privilege; and that there was a failure of consideration for the lease. If argues counsel for appellant, the lease is valid, appellant...