Worthington v. Moreland Motor Truck Co.

• Decision Date: 21 October 1926
• Docket Number: 19924.
• Citation: 140 Wash. 528,250 P. 30
• Parties: WORTHINGTON et ux. v. MORELAND MOTOR TRUCK CO.
• Court: Washington Supreme Court

250 P. 30

140 Wash. 528

WORTHINGTON et ux. v. MORELAND MOTOR TRUCK CO.

No. 19924.

Supreme Court of Washington

October 21, 1926

Department 2.

Appeal from Superior Court, Spokane County; Lindsley, Judge.

Action by L. S. Worthington and wife against the Moreland Motor Truck Company. Judgment for plaintiffs for part only of recovery sought, and both parties appeal. Judgment affirmed on both appeals.

James P. Stapleton, of Portland, Or., for plaintiffs.

M. E Mack and Maurice Smith, both of Spokane, for defendant.

MAIN J.

The purpose of this action was to recover rent claimed to be owing and unpaid. The trial was to the court without a jury and resulted in findings of fact, conclusions of law, and a judgment sustaining a recovery in the sum of $230. From this judgment the defendant appeals. The plaintiffs prosecute a cross-appeal because they are dissatisfied with the amount of the judgment.

The facts may be summarized as follows: The parties will be referred to, since both appeal, as plaintiffs and defendant. On the 29th day of August, 1923, plaintiffs leased to Thomas W. Gill and O. M. Fahey the premises known as 112 South Walnut street in the city of Spokane. The rent reserved was $115 per month, payable on the 1st day of each and every month. The lease by its terms expired August 31, 1924. On or about the 1st of May, 1924, Gill and Fahey vacated the premises and the defendant went into possession. Thereafter until the expiration of the lease each month the defendant paid the rent to Fahey and Gill in accordance with the terms of the lease, and they in turn paid it to Arthur D Jones & Co., the agents for the owners, the plaintiffs. During the month of August, 1924, and before the lease expired, some negotiations took place between Jones & Co. and representatives of the defendant relative to the latter continuing in possession after August 31, the day on which the lease expired. The defendant desired to remain in possession as a tenant from month to month, but the plaintiffs would not consent to this, but desired a written lease for the period of one year. The negotiations were never consummated. The lease to Gill and Fahey expired on August 31. On September 1 the defendant paid to the agents of plaintiffs the rent for that month. On October 1 it paid the rent for that month. On November 1 the defendant vacated the premises and sent a letter and the keys to Jones & Co., which were received by that company on the 3d or 4th of that month. The plaintiffs through their agents declined to accept the surrender of possession of the premises, and notified the defendant that it would be held for the rent until the building could be leased to another tenant. The present action as originally instituted sought to recover the rent for the month of November which was all that was owing at the time the action was begun. When the cause came on for trial the plaintiffs were permitted to file a supplemental or amended complaint by which recovery of the rent was sought, in addition to that of November, for the months of December, 1924, January, February, March, and April, 1925. The trial, as above stated, resulted in holding the defendant liable for two months' rent--that is, for the months of November and December, 1924. As to the other months a recovery was denied.

The defendant first claims that the complaint did not state a cause of action in that it was based upon a lease to which it was not a party and which by its terms had expired. There are in the complaint a number of allegations with reference to the lease, but the gravamen thereof was a recovery of rent for the months subsequent to the time that the lease expired and prior to the time that the premises were leased to another tenant. The allegations with reference to the lease may be regarded as surplusage or as introductory merely, and there still remain allegations of fact which, if true, would sustain a recovery.

Again the defendant insists that no...