Thisius v. Sealander

• Decision Date: 27 December 1946
• Docket Number: 30024.
• Court: Washington Supreme Court
• Parties: THISIUS et al. v. SEALANDER.

175 P.2d 619

26 Wn.2d 810

THISIUS et al. v. SEALANDER.

No. 30024.

Supreme Court of Washington

December 27, 1946

Department 1

Action of unlawful detainer by A. B. Thisius and wife and another against Torvig Sealander. From an adverse judgment plaintiffs appeal.

Remanded for a new trial.

Appeal from Superior Court, Yakima County; Robert J. Willis, judge.

J. P Tonkoff and Chalmer G. Walters, both of Yakima, for appellants.

Halverson & Applegate, of Yakima, for respondents.

SCHWELLENBACH, Justice.

This is an appeal from a judgment on the verdict for the defendant in an unlawful detainer action brought to obtain possession of a building leased by plaintiffs to defendant.

The complaint alleged that A. B. Thisius and Martha Thisius, his wife, were the legal owners of a four-story cold storage warehouse located in Yakima; that, in June, 1944, Thisius sold the property under a real-estate contract to Verne Tasker; and that, in December, 1945, Tasker assigned the contract to Tasker-Brackett, Inc., a Washington corporation.

That prior to the sale of the property, Thisius, on June 26, 1945 entered into a lease agreement with Torvig Sealander, who has occupied the premises since that time, but willfully and intentionally did violate the terms of the lease and permit waste on the premises, in that he failed to lubricate the cold storage machinery properly and used a poor grade of lubricants, resulting in certain equipment being damaged and destroyed beyond repair; and that he failed and neglected to operate the heating plant properly.

That the defendant continuously, willfully, and knowingly overloaded the floor space, causing each floor to sag and thus weaken the building, and three of the floors collapsed as the result of such overloading; that he failed to keep competent engineers, and, in 1945, failed to employ any engineer to maintain the cold storage equipment; that he did not abide by certain ordinances of the city of Yakima as to posting in a conspicuous place in each story of the building the loading capacity of the floor space.

That in March of 1945, Verne Tasker caused to be served upon defendant a notice of forfeiture for his failure to employ a competent engineer to maintain the plant, and that he failed to procure an engineer until the last day allowed in the notice of forfeiture; that thereafter, during the month of November, 1945, Tasker caused another notice of forfeiture to be served upon the defendant, due to his willful and intentional violation of the terms of the lease. The plaintiffs further alleged that they were entitled to possession on December 17th and to damages in twice the amount of the rental, which was five hundred dollars a month, together with damages for the destruction of the floors in the amount of ten thousand dollars, the sum of one thousand dollars for damage to the office space, and five thousand dollars for damage to the cold storage equipment and machinery, the damages asked for totaling sixteen thousand dollars.

By answer, the defendant admitted the existence of the corporation, the ownership of the property in Thisius; that a lease agreement had been entered into; that he had been in possession since June 26, 1942; and that a notice of forfeiture had been served upon him. But defendant denied that he had committed waste or had violated any of the terms of the lease. He denied the allegations as to damages for double rent, and also denied that the building had been damaged to the extent of sixteen thousand dollars. Affirmatively, the defendant alleged that, on April 14, 1945, he exercised his option to renew the lease for three years, and that, on July 18, 1945, he paid plaintiffs three thousand dollars as rent up to April 15, 1946; that he performed all the covenants of the renewed lease; that Tasker interfered with his quiet enjoyment under the terms of the lease, requiring him to employ a watchman at two hundred sixteen dollars a month; and that plaintiffs failed to keep the premises in repair, to his damage in the sum of $1,249.60. These matters were all denied by the plaintiffs.

The case was tried to a jury, which rendered a verdict for the defendant. A motion for judgment notwithstanding the verdict or, in the alternative, for a new trial was denied. The plaintiffs appealed.

The building was constructed by Thisius in 1935. It is a warehouse, a hundred by a hundred forty feet, consisting of a basement and three stories. He installed a refrigeration plant in the southeast corner of the basement. Sealander leased the premises in 1937 and 1938. The next year, he moved to another location, but went back in 1940. He has been there ever since. On June 26, 1942, the lease in question was entered into. The provision for forfeiture therein follows:

'Time and manner of payment by Lessee of said rent or sum reserved, in payments in advance as herein agreed, and strict performance by the Lessee of the terms, conditions and covenants, expressed or implied in law herein contained, is now agreed to be, and is hereby made, of the strict essence of this lease, and if default shall be made in the payment of rent, or any part thereof, or if default shall be made in any of the covenants, promises, or agreements herein contained to be kept by said Lessee, it shall be lawful for Lessors, at their election to terminate this lease; provided, however, that Before such termination and cancellation shall be effective the Lessors shall served upon Lessee, personally, a written notice specifying the particular defaults claimed by said Lessors, and requiring the Lessee in the alternative to remove said defaults within thirty days or to vacate said premises, and it is understoon and agreed that said notice of cancellation shall not be effective unless the Lessee shall fail to remove said defaults and comply with the lease and until the expiration of the thirty days from the service of said notice. It is further agreed that the method herein provided for shall be in lieu of the statutory remedies for cancellation of this lease.'

On April 14, 1945, Sealander served notice that he was exercising his option to renew the lease for a three-year period. July 17, 1945, he issued a check to Thisius and Tasker, in the amount of three thousand dollars, to cover rent up to April 15, 1946.

Meanwhile, on July 27, 1944, Thisius executed a contract of sale of the premises to Tasker, subject to the lease to Sealander. The purchase price was sixty thousand dollars, on which a down payment of one thousand dollars was made. The balance was to be paid by assuming a mortgage of twenty-five thousand dollars in favor of Sealander. The balance of thirty-four thousand dollars was to be paid in the following manner; four thousand dollars on or Before September 15, 1944, five thousand dollars at the time of surrender of possession of the premises by Sealander, and five thousand dollars each year thereafter until the entire purchase price is paid.

The building was constructed with a reinforced concrete floor in the basement. Some forty odd wooden columns, ten by twelve inches, extend from the basement, through the various floors, to the roof. Each column was set in a concrete pier which extended about eight inches from the floor. One morning in the early part of November, 1945, one of the columns split and the concrete in the supporting pier crumbled on two sides, so that, after the accident, the column was resting on a sort of wedge-shaped support. As a result, the three floors sagged at this point over a distance of approximately twenty-eight feet. The accident occurred in the engine room. Directly above was the office, and over that, on the other two floors, were piled boxes of apples. Emergency braces were put up, removing the immediate danger and restoring the sagging floors to a somewhat nearly normal condition. Two or three days later, the appellants caused to be served on the respondent the second notice of forfeiture. The notice was as to default in the following covenants of the lease: ordinances, repairs, maintenance, engineer, and indemnity. The allegations concerning the various defaults follwed the wording of the lease very closely. It was subject to the thirty-day provision quoted above. Tasker-Brackett was incorporated December 5 or 6, 1945, and, on December 6th, Tasker assigned his interest in the real-estate contract to the corporation.

Most of the testimony at the trial had to do with the collapse of the floors. Appellants' witnesses testified that it was due to the overloading of the warehouse with the apples. Respondent's witnesses...