Piles v. Bovee

• Decision Date: 30 June 1932
• Docket Number: 23609.
• Citation: 168 Wash. 538,12 P.2d 914
• Court: Washington Supreme Court
• Parties: PILES et al. v. BOVEE et al. (JOHN DAVIS & Co. et al., Garnishees; SANDERS, Intervener.

12 P.2d 914

168 Wash. 538

PILES et al. v. BOVEE et al. (JOHN DAVIS & Co. et al., Garnishees; SANDERS, Intervener.

No. 23609.

Supreme Court of Washington

June 30, 1932

Department 2.

Appeal from Superior Court, King County; H. G. Sutton, Judge.

Action by Samuel H. Piles and others against Walter G. Bovee and others, in which John Davis & Co. and others were garnished and in which Will Sanders, as receiver of the Bovee Hotel Company, intervened. From the judgment, plaintiffs appeal.

Affirmed.

Preston, Thorgrimson & Turner, of Seattle, for appellants.

Poe Falknor, Falknor & Emory, of Seattle, for respondents.

HOLCOMB J.

This is an action to recover rent due on a lease. James B. Howe, one of the lessors, died on March 4, 1930, and Rose F. Howe, his widow and executrix of his last will and testament, joined in the suit in her own behalf and as such executrix.

On September 4, 1929, Samuel H. Piles, Rose F. Howe, and James B. Howe, as lessors, leased the premises in question for a long term to Walter G. Bovee, as lessee, who took possession of the premises under the lease. On March 28, 1930, Bovee assigned the lease to the Bovee Hotel Company, a corporation which assignment was accepted by that corporation. Bovee was married to Bessie C. Bovee on January 20, 1927, prior to the execution of the lease to him. Bovee had owned a certain hotel in Seattle from October, 1925, to July, 1929, when he sold that hotel for $75,000 at which time he had separate property and securities of the value of $65,000 to $75,000 and at the time of his marriage, therefore, had no community property. After selling that hotel, he negotiated the lease with Mr. Piles and Mr. Howe for the premises leased by them. After taking the lease from them and assigning it to the Bovee Hotel Company, rent was paid to the lessors up to and including January 1, 1931. Four installments of rent of $1,500 each, and interest thereon, became delinquent. The Bovee Hotal Company, having become insolvent, passed into the hands of a receiver. Having introduced the lease and assignment thereof and it having been admitted that the $6,000 rentals and interest thereon were in default and that the burden was on respondents to show the separate character of the lease obligations, appellants rested their case Respondents then assumed the burden of showing the separate character of the obligations under the lease and introduced evidence by Bovee and Mrs. Bovee tending to show that the lease was the separate property and obligation of Walter G. Bovee alone.

Bovee testified, over the objection of appellants, that he owned and operated the other hotel from October 1, 1925, to July, 1929; that he married Bessie C. Bovee on January 20, 1927, and in July, 1929, he sold the other hotel for $75,000 and had separate property and securities to the value of $65,000 to $75,000, and had no community property at that time; that, after selling his interest in the other hotel, he negotiated the lease with Messrs. Piles and Howe for the premises leased by them. He also testified, over objection, that he paid a $3,000 premium for a bond required by paragraphs 4 and 5 of the lease providing for the erection of a building on the real estate, to the Union Indemnity Company, and turned over $60,000 in securities to that company to secure them against loss under the bond. The money so paid was derived from the sale of the other hotel. He borrowed some money from a bank, signing a note therefor, and securing the loan by putting up the other hotel contract as collateral. He also paid $3,000 to a broker for insurance and a general adjustment on the property leased. He paid out $5,000 in taxes on the property involved, to the county treasurer, using funds received from the other hotel contract then in escrow with the bank. He collected about $900 a month, and paid a deficiency rental of $600 to $700 each month from funds derived from the sale of the other hotel. These payments he testified were from his separate property. His principal business Before and after his marriage was as operator of hotels, and, prior to the execution of the lease involved herein, was the operator of the other hotel referred to and garage in connection therewith. His salary for so doing was $250 per month, which was used up in living expenses.

Another witness testified corroborating Bovee's testimony regarding the loan from the bank and the transaction in connection therewith and further testified that Bovee and Mrs. Bovee each had had individual checking accounts for several years.

Mrs. Bovee testified, over objection, to her marriage with Walter G. Bovee on January 20, 1927; that no property was acquired by them through their joint efforts after marriage; that Bovee sold the other hotel in July, 1929, for $75,000; that at that time he had between $50,000 and $60,000 in securities, most of which he accumulated Before marriage, owning the other hotel when married; that after the sale of that hotel he entered into the lease involved herein with which she had nothing to do and he alone was interested in the lease; that he put stocks and bonds he owned and payments received from the sale of the other hotel into the lease involved herein. She testified that at the time of the lease Bovee put up about $65,000 worth of stocks and bonds to the bonding company and at that time she gave Brovee over $18,000 worth of securities for which he gave her an assignment of the other hotel contract a day or two Before the lease in this suit. That loan was subsequently repaid. She further testified that at the time of their marriage both she and Bovee had individual business and each conducted and invested his or her own money as each saw fit. All business was separate, and there was no community property. Her money was derived from insurance on the death of her first husband about eight years Before . Also, over specific objection, she testified that at the time Bovee entered into this lease he and she understood that he was to enter into the lease individually, as his sole separate property was involved and she did not approve of the venture.

The assignment of the lease to the Bovee Hotel Company was introduced in evidence by appellants showing that Mrs. Bovee executed the instrument with Bovee and that she secretary and a stockholder of the Bovee Hotel Company and signed the assignment as secretary thereof and also as an individual.

Appellants emphasize the absence of any testimony that they knew that Bovee signed the lease in his separate capacity respecting only his separate property; or that they knew that he had separate property; or that Mrs. Bovee objected to his signing the lease; or that they knew that the Bovees had an understanding respecting the character of the lease as separate property; or that the moneys invested and paid to third parties, or to appellants, were paid from Bovee's separate estate; or that appellants had agreed to accept the individual liability only of Bovee, releasing the community.

The trial...