Woodward v. Blanchett

• Decision Date: 28 March 1950
• Docket Number: 31070.
• Citation: 216 P.2d 228,36 Wn.2d 27
• Parties: WOODWARD et al. v. BLANCHETT et al.
• Court: Washington Supreme Court

216 P.2d 228

36 Wn.2d 27

WOODWARD et al. v. BLANCHETT et al.

No. 31070.

Supreme Court of Washington.

March 28, 1950

Department 2.

William Clapp, Ephrata, Allen Spratlin Edward T. Engst, Grand Coulee, for appellants.

H. Earl Davis, Spokane, W. E. Southard, T. B. Southard, Ephrata, for respondent.

HAMLEY, Justice.

On May 20, 1941 N.D. Johnson, as owner, and W. A. Blanchett, as tenant entered into two certain farm leases to run through the crop year of 1942, covering nine hundred sixty acres of wheat land situated in Grant county, Washington. W. A. Blanchett later assigned his interest in the leases to his brother, Harry Blanchett. The leases contained a covenant that the land would be cultivated in a first class farmerlike manner and in proper season. As rent for the premises, the leases provided that Johnson was to receive one-fourth of the 1942 crop. The Blanchetts were already in possession on May 20, 1941, having held over under a prior lease.

Beginning early in June, 1941, Johnson, believing the lands to be improperly farmed, hired workmen from time to time to enter the premises and do weeding and disc tilling. It was their testimony, and also that of other witnesses produced by plaintiff at the later trial, that the weeding and cultivating had been neglected by the Blanchetts. As a result, they testified, much of the lands were covered with Russian thistles and other weeds which by July had reached a height of three feet and were as big as table tops. It was their further testimony that, by reason of such neglect, four hundred acres of the leased lands could not be reclaimed from weeds during 1941. Most of this testimony was controverted by the Blanchetts and other witnesses who testified in their behalf.

In the fall of 1941, the Blanchetts seeded fifty acres of the land to wheat. Johnson also seeded a portion of the land to wheat and rye in the fall of 1941, buy the record does not appear to show the acreage which he planted.

On September 3, 1941, Johnson sent W. A. Blanchett a written notice purporting to cancel the lease because of breach of the covenant to cultivate the land in a farmerlike manner. Nine days later Johnson sent a similar notice to W. A. Blanchett and W. J. Blanchett, the lessee's father.

On October 28, 1941, Johnson instituted this action against W. A. Blanchett and Harry Blanchett. The complaint contains three causes of action. The first cause of action, based on an earlier farm lease, and the third cause of action, seeking injunctive relief, were abandoned at the time of the trial. The second cause of action is to recover damages in the sum of twenty-five hundred dollars because of alleged improper methods of farming the lands in question. Defendants answered, denying the allegations of the complaint, and cross-complaining for damages in the amount of three thousand dollars because of alleged interference with defendants' use and possession of the premises. By a later supplemental answer, defendants sought an additional six thousand dollars by reason of the alleged interference.

On January 30, 1942, Johnson sent defendant Harry Blanchett a third written notice of termination and cancellation of the lease, similar in a general way to the two notices sent in September, 1941. In 1942, Johnson harvested the wheat and rye crop he had seeded. The Blanchetts did not harvest the fifty acres of wheat they had seeded, the testimony being that it was not worth harvesting. Johnson died prior to the trial, which was not had until December, 1947, because of W. A. Blanchett's absence while serving in the armed forces. Johnson has been succeeded in this litigation by his executrix.

The jury returned a general verdict for defendants. In answer to an interrogatory, the jury found that plaintiff had suffered damages in the sum of twenty-five hundred dollars because of defendants' failure to farm the land in a proper manner. In answer to another interrogatory, the jury found that defendants had suffered damages in a like amount because of plaintiff's interference with defendants' use and possession of the lands. The court denied defendants' motions for judgment notwithstanding the verdict and, in the alternative, for a new trial. Thereafter the court entered judgment on the verdict, finding each side to have been damaged in the amount of twenty-five hundred dollars, which amounts were set off, defendants being given judgment for costs and disbursements. Defendants have appealed.

Appellants first assign as error the failure of the court to hold, as a matter of law, that any notice given by Johnson to appellants was improper and insufficient, and that respondent had accordingly failed to prove a cause of action. Appellants' fourth assignment of error involves the same question and the two assignments will be considered together.

None of the three written notices given to appellants by Johnson informed appellants of the particular acts or omissions asserted to constitute a breach of the covenant to cultivate the lands in a farmerlike manner. None of the notices gave appellants the alternatives of performing the covenant or surrendering the premises. Accordingly, these notices failed to comply with the provisions of Rem.Rev.Stat. § 812(4), relating to unlawful detainer. Byrkett v. Gardner, 35 Wash. 668, 77 P. 1048. It also appears that the three notices were not served in the manner provided by Rem.Rev.Stat. § 814, also relating to unlawful detainer. Respondent has therefore failed to prove a cause of action on its complaint for damages, if such cause of action is to be regarded as one for unlawful detainer. It accordingly becomes necessary to determine the nature of the cause of action in question.

As heretofore indicated, we are concerned only with respondent's second cause of action, the others having been abandoned at the trial. As to this cause of action, the complaint alleges the execution of the lease; the interest of appellant Harry Blanchett therein; the fact that the leases contain covenants requiring that the lands be cultivated in a farmerlike manner; appellants' breach of the covenants by failure to plow and weed the lands; and damages resulting therefrom in the sum of twenty-five hundred dollars. Johnson did not seek possession of the premises, since he was already in possession at the time the litigation was instituted. Nor did he seek to cancel the lease or quiet title to the lands. The only relief sought was a money judgment for damages.

The action of unlawful detainer is the legal substitute for the common-law right of personal re-entry for breach. Spencer v. Commercial Co., 30 Wash. 520, 71 P. 53; Brown v. Hayes, 92 Wash. 300, 159 P. 89. Here respondent was not seeking a right of re-entry. Appellants had already left the premises and Johnson was in possession. No writ of restitution was asked for or awarded. See Rem.Rev.Stat. § 819. Accordingly, this does not purport to be a statutory action for unlawful detainer pursuant to Rem.Rev.Stat. §§ 812, 814-833. Johnson v. Chittenden, 146 Wash. 645, 264 P. 425; Gustin v. Klingenberg, 190 Wash. 590, 70 P.2d 308. See, also, Petsch v. Willman, 29 Wash.2d 136, 185 P.2d 992. It is worth noting that, had this been an action for unlawful detainer, appellants could not have counterclaimed for damages suffered because of wrongful eviction. Phillips v. Port Townsend Lodge No. 6, etc., 8 Wash. 529, 36 P. 476; Chung v. Louie Fong Co., 130 Wash. 154, 226 P. 726.

Respondent asserts that this is an action in ejectment pursuant to Rem.Rev.Stat. § 785. Verline v. Hyssop, 2 Wash.2d 141, 97 P.2d 653, and Petsch v. Willman, supra, are cited by respondent for the proposition that the remedy afforded by the unlawful detainer statute is not exclusive and that a landlord may still maintain an action in ejectment.

We are inclined to believe that this is not a suit for ejectment pursuant to Rem.Rev.Stat. § 785, since the landlord was already in possession and did not seek to quiet title to the lands. 18 Am.Jur. 7, Ejectment, § 2; 28 C.J.S., Ejectment, § 1, p. 848. In our view this is an ordinary civil action brought to recover damages for injury to the reversion. 51 C.J.S., Landlord and Tenant, § 262(b), p. 906. But, whether an action in ejectment or a simple action for damages, no form of written notice from landlord to tenant was required as a condition precedent to bringing the suit. We conclude that respondent's cause of action does not fail because of any inadequacy in the form of the notice or the manner of its service. Appellants' first and fourth assignments of error are, therefore, not well taken.

Appellants' third assignment of error is somewhat related to assignments one and four, which have just been discussed. Under assignment three it is asserted that the allowance of damages to the lessor because of the lessees' improper farming of the land is inconsistent, as a matter of law, with the allowance of damages to the lessees because of the lessor's interference with the lessees' use and occupancy of the land. Accordingly, it is contended that special interrogatory No. 1, which submitted to the jury the question of respondent's damages and made possible these inconsistent findings, should not have been given. In is further contended that, having given such interrogatory, and the jury having brought in inconsistent answers, it was the duty of the trial court to require the jury to reconcile the inconsistencies, or, in the alternative, to disregard the interrogatories and, on the basis of the general verdict for appellants, enter judgment as prayed for in the cross-complaint.

The question presented by this assignment may be restated as follows: Is a lessor's action for damages because of the lessee's breach of a covenant to operate the premises in...