Sylvester v. Hotel Pasco, Inc.

• Decision Date: 25 July 1929
• Docket Number: 21653.
• Citation: 279 P. 566,153 Wash. 175
• Parties: SYLVESTER v. HOTEL PASCO, Inc., et al.
• Court: Washington Supreme Court

279 P. 566

153 Wash. 175

SYLVESTER v. HOTEL PASCO, Inc., et al.

No. 21653.

Supreme Court of Washington

July 25, 1929

Department 1.

Appeal from Superior Court, Franklin County; John Truax, Judge.

Action by A. F. Sylvester against Hotel Pasco, Inc., and others. Judgment of dismissal, and plaintiff appeals. Affirmed.

Edward A. Davis, of Pasco, for appellant.

Raleigh P. Swanner, of Pasco, and Charles W. Johnson, of Seattle, for respondents.

TOLMAN J.

Appellant plaintiff below, has appealed from a judgment of dismissal entered after the sustaining of a demurrer to his amended complaint and his election to stand thereon.

In substance, the amended complaint sets forth that on March 11 1924, the then owners of the building, known as the Hotel Pasco, leased to the appellant a certain room in that building to be used as a soft drink parlor, card room, and billiard parlor for the term beginning June 1, 1925, and ending May 31, 1930. The written lease which is set out in full, among other things, provides: 'The lessor, for itself, its successors and assigns, agrees that during the term of this lease no other part of the building shall be rented for poolroom, card-room or cigar store.'

That thereafter, and on the 1st day of April, 1927, the owner of the building, by a written lease, let the entire building to the respondent Hotel Pasco, Inc., for the term of thirteen years from that date, in which lease there is incorporated the following provision:

'This lease is subject to a certain lease dated March 11th, 1924, between the Kerfoot Investment Co., a corporation, to A. F. Sylvester, leasing a portion of said premises up to and including the 31st day of May, 1930.'

Thereafter, on the 16th day of July, 1927, the Hotel Pasco, Inc., made a written lease to the appellant of the indentical property covered by his lease of March 11, 1924, but at a reduced rental and for a period ending on the 31st day of July, 1932. In this lease was incorporated the following provision:

'The lessor, for itself, its successors and assigns, agrees that during the term of this lease no other part of the building shall be rented for poolroom, card-room, cigar store or drinking room.'

The amended complaint then alleges that, notwithstanding the terms and conditions of the leases already pointed out, the respondents have installed and are now operating and proposing to operate in a room in the hotel building a soda fountain, drinking room, and cigar store in violation of the terms of the leases which will result in great and irreparable damage and injury to the appellant and to the business which he is carrying on as lessee of the room in said building. The insolvency of the defendants is also alleged, and the absence of any speedy and adequate remedy at law, and the prayer is for judgment...