Perkins v. Marsh, 25307.
| Decision Date | 21 November 1934 |
| Docket Number | 25307. |
| Citation | 179 Wash. 362,37 P.2d 689 |
| Parties | PERKINS et ux. v. MARSH et al. |
| Court | Washington Supreme Court |
Department 1.
Appeal from Superior Court, Clark County; Geo. B. Simpson, Judge.
Action by C. A. Perkins and wife against John L. Marsh and another copartners doing business as Marsh-Pearson Motor Company, in which defendants filed cross-complaint. From a judgment denying recovery on either complaint but awarding costs to the defendants, plaintiffs appeal.
Affirmed.
Hall & Schaefer, of Vancouver, for appellants.
Sugg & Mason, of Vancouver, for respondents.
This is an action for rent of a building upon a written lease made by plaintiffs to defendants. The defense interposed was a constructive eviction by the lessors because of defects which were known to the lessors, of which they failed to inform the lessees prior to the lease, which the lessees did not know, and by reason of said defects the building was unfit for the purposes for which it was leased. By cross-complaint defendants sought recovery of damages alleged to have been sustained by reason of the condition of the premises. The cause was tried to the court which found that plaintiffs and defendants, respectively, were not entitled to recovery on the complaint and cross-complaint but that defendants were entitled to their costs. From the judgment entered in conformity thereto, plaintiffs appealed.
Appellants have not brought a statement of facts or a bill of exceptions to this court. Therefore, the case is Before us on the transcript, which includes the findings of fact, conclusions of law, and the judgment.
It is the position of appellants that the findings of fact do not sustain the judgment; that the concealment of which respondents complain is not actionable, inasmuch as there is no implied covenant upon the part of the landlord that the demised premises are fit for the purposes for which they are rented, or for the particular use for which they are intended by the tenant. The facts as found by the court are summarized as follows:
On March 24, 1931, appellants leased, by written contract, to respondents, the basement and second floor of a building in Vancouver, at a monthly rental of $170, for a period of three years from April 15, 1931. The premises were leased for the use of respondents as a retail automobile business, together with the repair and service shop, and the basement was to be used as a storage and salesroom for used automobiles. Appellants had conducted a similar business in the same premises for a period of time prior to the leasing of same to respondents and were familiar with the true conditions of the premises. Appellants knew that the upper floor was to be used as an exhibit and salesroom and for the office of respondents and that it would be necessary that same be warm and dry. The premises were never fit for the purposes for which they were leased, by reason of the fact that the basement was continually wet during the rainy season. At such times the water would rise to a depth of two to three inches over the basement floor, the moisture penetrating to the upper floor and rendering the heating plant useless. Respondents were ignorant of the fact that during the wet season the premises became unfit for use. The premises were of no value to respondents during the winter season, or at any time except during the extremely dry months of summer and fall; hence it became impossible for respondents to continue to occupy the premises and conduct their business therein. They vacated the premises May 15, 1932. 'This vacation of these premises was excusable, and the defendants could have moved out at any time, and could not have been compelled to drain the building or try to keep it warm.'
It is true that, in the absence of a duty to speak, silence as to a material fact does not of itself constitute fraud. Farmers' State Bank of Newport v. Lamon, 132 Wash. 369, 231 P. 952, 42 A. L. R. 1072. However, the concealment by one party to a transaction of a material fact within his own knowledge, which it is his duty to disclose, is actual fraud. If appellants intentionally concealed some fact known to them, which it was material for respondents to know, that constituted a fraudulent concealment; that is, the concealment of a fact which one is bound to disclose is the equivalent of an indirect representation that such fact does not exist, and differs from a direct false statement only in the mode by which it is made. The general rule is, as contended by appellants, that there is no implied covenant upon the part of the landlord that the demised premises are fit for the particular use for which they are intended by the tenant, or that they shall continue fit for the purpose for which they were demised. 36 C.J. p. 45.
There is an exception to the rule. Where there are concealed defects in demised premises dangerous to the property, health, or life of the tenant, which defects are known to the landlord when the lease is made, but unknown to the tenant, and which a careful examination on his part would not disclose, it is the landlord's duty to disclose them to the...
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Atherton Condominium Apartment-Owners Ass'n Bd. of Directors v. Blume Development Co.
...deem this rule to be equally applicable to the vendor-purchaser relationship. Obde, 56 Wash.2d at 452, 353 P.2d 672 (quoting Perkins, 179 Wash. at 365, 37 P.2d 689). Accordingly, a builder-vendor's duty to speak arises in those situations where: there is a concealed defect in the premises o......
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Linda EASTWOOD v. HORSE HARBOR Found. INC.
...Fraudulent concealment in a real estate transaction is a cause of action that has long been recognized in Washington. Perkins v. Marsh, 179 Wash. 362, 367-68, 37 P.2d 689 (1934). Independent of the obligations in a lease or a residential real estate sales contract, the vendor or lessor has ......
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Griffith v. Centex Real Estate Corp.
...115 Wash.2d at 524, 799 P.2d 250 (quoting Obde v. Schlemeyer, 56 Wash.2d 449, 452, 353 P.2d 672 (1960) (quoting Perkins v. Marsh, 179 Wash. 362, 365, 37 P.2d 689 (1934))). The Atherton court further observed that "the defect complained of must 'substantially affect[ ] adversely the value of......
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Quashnock v. Frost
...the time the lease is made, and dangerous to the unknowing tenant. 56 Wash.2d at 451-53, 353 P.2d at 674-75 (quoting Perkins v. Marsh, 179 Wash. 362, 37 P.2d 689 (1934) 7). The court deemed this rule to be equally applicable in the vendor-vendee situation. Bringing this comparison home to P......
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Table of Cases
...8.2(3)(d) Peoples Park & Amusement Ass'n v. Anrooney, 200 Wash. 51, 93 P.2d 362 (1939): 17.3(2)(a), 17.3(4), 17.12(2) Perkins v. Marsh, 179 Wash. 362, 37 P.2d 689 (1934): 17.4(5), 20.12(2) Perrin v. Derbyshire Scenic Acres Water Corp., 63 Wn.2d 716, 388 P.2d 949 (1964): 7.2(1) Perry v. Isla......
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Chapter §17.4 - Tenant's Right of Possession and Enjoyment
...of which the landlord failed to inform the tenant. See, e.g., Flannery v. Nelson, 59 Wn.2d 120, 366 P.2d 329 (1961); Perkins v. Marsh, 179 Wash. 362, 37 P.2d 689 (1934). The landlord has an affirmative duty to warn the tenant when the tenant could not be expected to discover the hidden The ......