Progress Amusement Co. v. Baker

• Decision Date: 08 March 1919
• Docket Number: 14992.
• Parties: PROGRESS AMUSEMENT CO. v. BAKER.
• Court: Washington Supreme Court

179 P. 81

106 Wash. 64

PROGRESS AMUSEMENT CO. v. BAKER.

No. 14992.

Supreme Court of Washington

March 8, 1919

Department 1.

Appeal from Superior Court, Pierce County; C. M. Easterday, Judge.

Action by the Progress Amusement Company against John S. Baker. From judgment dismissing the action, plaintiff appeals. Reversed and cause remanded, with direction to enter judgment for plaintiff.

Hughes McMicken, Ramsey & Rupp, and John P. Garvin, all of Seattle for appellant.

W. W Keyes and M. J. Gordon, both of Tacoma, for respondent.

MITCHELL J.

By a written contract dated January 20, 1914, signed by both parties, respondent, John S. Baker, agreed he would erect upon his property in Tacoma a moving picture theater building for the use and occupancy of appellant for a term of ten years. To assure compliance with the terms of the contract on its part appellant deposited with respondent $10,000, which was to be applied one-half to the payment of the last four months' rental of the first year of the term and the other one-half to the last four months' rental of the last year of the term, with the further agreement that default on the part of appellant at any time during the term would work a forfeiture of the amount of such deposit remaining at that time in the hands of the respondent. The contract provided the theater building should be substantially a counterpart of the Colonial Theater building in Seattle, with certain exceptions not necessary to be mentioned here. After the contract was signed and the deposit of $10,000 made, but before the commencement of the construction of the building, appellant offered respondent $2,500 to be released from the contract. Respondent refused the offer, and promptly thereafter, confirmatory of his refusal, wrote to appellant, saying:

'I am ready and willing to perform each and every condition of the lease, and expect you to do likewise.'

To which appellant replied by letter

'You can proceed with the erection of the building, and the lessee will undertake to carry out the terms and conditions of the lease on its part.'

Thus, whatever may have the mutual dispositions of accommodation shown in conferences leading up to the making of the contract and until appellant attempted to procure a cancellation of the contract, it is evident from all that was said at the time the offer was made and the exchange of the letters immediately following, that each party then gave the other to understand a strict compliance with the terms of the contract would be expected. Respondent erected the building and tendered it to appellant. Appellant caused the building to be inspected by architects, and upon receiving their report notified respondent in writing that the building was materially deficient as to attractiveness and desirability in a large number of specified particulars, and that there were other defects which greatly reduced the suitability of the building for the purpose for which it was leased, declined to sccept it, and demanded a return of the $10,000 deposit. Respondent refused the demand and claimed a forfeiture of the deposit. To recover this sum and interest appellant instituted this action.

Other facts will appear further along in the opinion. The trial court made findings that there were certain differences between the two buildings, not sufficient, however, to constitute a failure on the part of respondent to comply with the contract. Upon such findings a judgment of dismissal of the action was entered, from which this appeal is taken.

In its complaint appellant relied on quite a number of items as to which it alleged the Tacoma building was materially defective as compared with the Seattle building, all of which are noticed in its brief on appeal. However, in oral argument all of them were practically abandoned except those relating to general construction with reference to fire protection, plastering and lathing of the ceiling and partitions, and those relating to the rear exits, each of which is associated with the claim that the Tacoma building ordinance was violated.

The trial court in effect found, and the proof satisfactorily shows, that the ceiling in the Seattle building was constructed of heavy timbers, from which, hanging on metal straps, there are steel channels, to which are wired metal laths, and the celling plastered on the metal laths. This is what is termed practically fireproof or slow-burning construction. The Tacoma building has light ceiling joists, wood laths, and plaster. This is termed ordinary masonry construction. The partitions in the Seattle building are of slow-burning construction, while those in the Tacoma building are ordinary masonry construction. Slow-burning construction is the more expensive of the two kinds. In some other particulars, of a minor sort other than the rear exits and approaches, it appears the Seattle house was nearer fireproof than the Tacoma building.

The seating capacity of the Tacoma building is about 1,000, while that of the Seattle building is 100 to 125 less. The capacity of the front doorways in each building is about the same. The Seattle theater has two rear exits each 5 feet wide, with an inclined approach the same width; the Tacoma building has two rear exits each 3 1/2 feet wide, with a wooden stairway approach 4 feet wide and 18 to 20 steps high. The building in material respects was constructed in violation of the provisions of the city ordinance. At the trial this matter was first gone into by the respondent. On cross-examination of two of appellant's witnesses, without any testimony in chief concerning the matter, it was developed that the building ordinance of Tacoma had been violated with reference to the construction of the celling and partitions. Then in further cross-examination of one of those witnesses who was disinterested and who for nine years had been an architect in Tacoma, be testified as follows:

'Q. Stairs are the only practicable way of meeting the physical conditions on the site of the Tacoma theater? A. Yes, sir; but they are constructed of wood; they are also contrary to the ordinances as regards width. * * * Q. What columns did you refer to when you said they were contrary to the

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