Yakima Lodge No. 53, K. P. v. Schneider, 24409.

• Decision Date: 25 July 1933
• Docket Number: 24409.
• Citation: 24 P.2d 103,173 Wash. 639
• Parties: YAKIMA LODGE NO. 53, K. P., v. SCHNEIDER.
• Court: Washington Supreme Court

24 P.2d 103

173 Wash. 639

YAKIMA LODGE NO. 53, K. P., v. SCHNEIDER.

No. 24409.

Supreme Court of Washington

July 25, 1933

Department 2.

Appeal from Superior Court, Yakima County; A. W. Hawkins, Judge.

Action by the Yakima Lodge No. 53, Knights of Pythias, a corporation, against Dina M. Schneider. Judgment for plaintiff, and defendant appeals.

Affirmed.

LaBerge Cheney & Hutcheson, of Yakima, for appellant.

McAulay & Freece, of Yakima, for respondent.

STEINERT Justice.

This is an action to recover damages for breach of a contract to furnish adequate heat to certain premises leased to the plaintiff. The jury returned a verdict in plaintiff's favor. After denying defendant's several motions subsequent to the verdict, the court entered its judgment, from which defendant appeals.

In 1922 appellant leased to the respondent the second floor of a building in the city of Yakima for a term of five years. When the lease expired in 1927, a new lease was entered into between the parties for an additional period of five years. Although the respondent intended to, and did, use the premises for lodge and kindred purposes only, the new lease which is the only one appearing in the record, did not restrict the use to such purposes. The lease contained a provision requiring the lessor to furnish adequate heat for the building. The evidence shows, almost without question that during the winter months of each year the amount of heat supplied was wholly inadequate for the comfortable or reasonable use of the ledge room by the various organizations which held their meetings therein as subtenants of the respondent. Appellant admits that there was sufficient evidence to take the case to the jury on that question, and the verdict establishes the jury's determination of that issue.

The appellant contends, however, that the evidence with reference to respondent's damages was so indefinite and uncertain as to furnish no basis for recovery. The measure of demages for breach of the lessor's covenant to heat leased premises is the difference between the value of the use of such premises as furnished by the lessee and heated as contemplated by the contract, and the value of their use as in fact heated by the lessor. Purcell v. Warburton, 70 Wash. 129, 126 P. 89; Schermerhorn v. Sayles, 123 Wash. 139, 212 P. 156. In the absence of the instructions as a part of the record, it must be assumed that the court properly instructed the jury upon the measure of damages.

Appellant argues that, since the inadequacy of heat was referable only to the winter months of each year, the damages recoverable must, likewise, be limited to such periods. But this contention overlooks the fact that the testimony regarding the use of the premises and the value to be placed thereon, with and without adequate heat, was on the year-round basis. The lease was for a fixed term with a constant rate of rent. Obviously, the landlord will effect a saving in the matter of heat during the summer months, while, on the other hand, the tenant gets more for his money during the winter. These facts were undoubtedly taken into consideration when the amount of rent was fixed at a uniform monthly rate throughout the term.

Upon the matter of damages, appellant makes some further contention that the evidence showed that certain portions of the leased premises were adequately heated at all times, and that the amount of recovery should therefore be reduced in a proportionate sum. The lease covered the entire second floor of the building. Respondent's evidence went to the depreciated value of the use of the premises as a whole. Appellant by her evidence sought to limit the amount to the extent just referred to. The jury, after hearing all of the testimony, returned its verdict, which, in its amount, is well within the evidence and conforms to the rule which we have hereinabove announced.

During the course of the trial, appellant amended her answer by including an allegation therein to the effect that the lease was invalid because it contravened the fire ordinance of the city of Yakima. It appears that at the time of the execution of the lease and...