I. M. CUSCHNER, Appellant,
vs.
T. E. WESTLAKE, Respondent
No. 6240
SUPREME COURT OF WASHINGTON
43 Wash. 690, 86 P. 948
September 14, 1906, Decided
Appeal from a judgment of the superior court for Spokane county,
Huneke, J., entered February 20, 1906, upon the verdict of a jury
rendered in favor of the defendant by direction of the court at
the close of plaintiff's case, in an action of forcible entry and
detainer.
LANDLORD AND TENANT -- FORFEITURE -- SURRENDER BY LESSEE -- RIGHT
OF SUBTENANT. A notice of forfeiture of a lease for nonpayment of
rent, given when the rent was fully paid and at the request of
the lessee, shows only a voluntary relinquishment to the lessor,
which could not affect the rights of a subtenant.
LANDLORD AND TENANT -- LEASE -- CONDITIONS AS TO SUBLETTING. An
express provision in a lease that the entire premises could not
be sublet without the consent of the lessor does not prevent the
subletting of a portion of the premises without such consent, and
the same would not be a breach of that condition of the lease.
LANDLORD AND TENANT -- FORFEITURE -- SURRENDER OF POSSESSION --
RIGHTS OF SUBTENANT. An attempted forfeiture of a lease for
nonpayment of rent is of no effect as against a subtenant, where
on the same day, either before or after the notice of forfeiture,
the lessee and the subtenant jointly paid the rent due and the
same was accepted by the lessor; since if the payment was before
notice, no forfeiture could be declared; and acceptance after
payment was an admission of the continuance of the tenancy.
LANDLORD AND TENANT -- ESTOPPEL OF LESSOR. Where plaintiff
acquired the rights of a lessee while the rent was due, and also
took a new lease expressly stating that it was subject to the
former lease, he is not in a position to urge a forfeiture of the
former lease for nonpayment of rent, as against a subtenant of
the first lessee, since the same could occur only through his own
neglect.
Samuel R. Stern, for appellant.
Danson & Williams, for respondent.
HADLEY, J. MOUNT, C.J., CROW, and DUNBAR, JJ., concur. FULLERTON,
J., concurs in the result. HADLEY
{*691} This is an action for the possession of real estate,
brought under the forcible entry and detainer statute. The
plaintiff alleges that on April 30, 1896, George M. Forster and
wife were the owners of a certain described lot in Spokane, and
that on said date they executed a lease therefor to the Spokane
Meat Company, a corporation; that by the terms of the lease the
premises could not be sublet without the written consent of the
lessors, and that the lessee was required to pay the sum of $ 200
in advance upon the 1st day of each and every month during the
leasehold term; that during the term of the lease and upon the
written consent of all the parties thereto, it was assigned by
said lessee to E. H. Stanton, who thereby became bound by all the
conditions of the lease which were imposed upon the original
lessee; that Stanton, in violation of the terms of the lease,
did, without the consent of the lessors, sublet the premises to
the defendant herein, and that he did also fail to make payment
on the 1st day of December, 1904, of the rent then due under the
lease; that thereafter, on the 17th day of December, 1904, the
lessors notified Stanton that the lease was cancelled and that
Stanton thereupon consented to said cancellation and surrendered
the premises to the lessors; that on the 30th {*692} day of said
last named month, said lessors as owners of the property executed
a lease of the lot to the plaintiff herein; that the defendant,
prior to said 1st day of December did, under said attempted
subletting and as a mere trespasser, enter into the premises and
into the building thereon; that said Stanton, at the time of the
cancellation of his lease as aforesaid, and for some time prior
thereto, was the owner of said building, which had been erected
by him upon a portion of said lot, and that on said 1st day of
December, 1904, Stanton sold the building to this plaintiff, a
part of which was, at the time of said sale, ever since has been,
and still is, occupied by the defendant as a trespasser; that the
defendant was notified of the cancellation of said lease, and was
requested to remove from the premises, but that he has refused so
to do, and still continues to occupy them as a mere naked
trespasser. It is alleged that a written notice to quit within
three days was served upon defendant, but that he nevertheless
refused to vacate. Damages are alleged in the sum of $ 4,000, and
judgment is asked for double the amount of the damages and for a
writ of restitution.
The defendant answered with denials, and also affirmatively
alleged that, after the assignment of the original lease to
Stanton, as averred in the complaint, and on the 19th day of
April, 1901, Stanton leased to the defendant and another the east
twenty-four feet of said lot, together with the store building
situate thereon, for the term of five years from May 1, 1901, to
May 1, 1906, which lease is now owned by the defendant; that said
sublease was made with the full knowledge and consent of the
holder of the original lease, and that the subsequent sole
ownership thereof was also with the like full knowledge and
consent of the original lessor; that the defendant made valuable
and permanent improvements in said building to the extent and
value of $ 1,800, all of which were made with the knowledge and
consent of Forster, the first lessor, and with the further
knowledge and consent on his part that they were {*693} being
made in reliance upon said sublease, and that he consented that
the defendant should retain possession thereunder for the full
term of five years; that in the month of August, 1904, a fire
occurred in said building, so that the roof was destroyed,
together with other serious damage, and that Stanton and the
defendant then entered into an oral agreement by which defendant
should put a new roof upon the building occupied by him, furnish
and install a cold storage plant for himself, and otherwise
repair the building so that it should be fit for occupancy by
him, and that in consideration thereof the rent from said date
until the expiration of the lease should be $ 100 per month; that
in pursuance of said arrangement and relying thereon, the
defendant made said improvements to the extent and value of $
1,500; that thereafter, on or about December 1, 1904, Stanton
sold and assigned the lease held by him to plaintiff, and also
conveyed said building to the plaintiff; that the lease was
assigned subject to the sublease of this defendant, and with the
understanding and agreement by and between Stanton and the
plaintiff that the defendant should be allowed to remain in
possession until May 1, 1906, and pay as rental $ 100 per month,
the plaintiff having full knowledge of said oral agreement to pay
said sum as above mentioned; that the plaintiff received $ 45.15
rent paid by defendant for said premises from December 17, 1904,
to January 1, 1905, with full knowledge of all the above stated
facts; that on the 1st day of each month since, the defendant has
tendered $ 100 per month as the rent aforesaid, and that on June
1, 1905, he paid the sum of $ 600, being the rent for the six
months expiring June 30, 1905, and the same was received by the
plaintiff; that on the 1st day of each month since said time he
has tendered all the rent due, which plaintiff has refused to
receive. By reason of the foregoing alleged facts, defendant says
the plaintiff is estopped to maintain this action.
{*694} The reply, a part of which was stricken, is extensive and
contains certain admissions, denials and allegations which, in
effect, controvert the entire theory of the answer. We think it
unnecessary to set them forth here. We have stated somewhat fully
the averments in the complaint and answer, so as to show the
respective theories of the parties as the basis of the
controversy. The cause came on for trial before a jury, and at
the close of the plaintiff's testimony, the defendant challenged
the sufficiency of the evidence to justify a verdict in favor of
the plaintiff, and moved that the case should be withdrawn from
the jury and judgment entered for the defendant. The motion was
granted and judgment was accordingly entered, from which the
plaintiff has appealed.
It is argued by appellant that a subtenant is chargeable with
notice of the provisions of his lessor's lease, and takes the
chance of its being cancelled. The proposition as stated is true,
if by the terms of the lease and attending facts the original
lessor has it in his power to declare a forfeiture and
cancellation. It is argued that the fire which occurred in the
building was recognized as a termination of the lease to Stanton,
for the reason that the lessor Forster felt himself insecure as
to future rent without the building as security therefor. It is
also argued that Stanton consented to the termination.
Respondent's rights as a subtenant existed, however, before the
fire, and if the fact of damage by fire was not a legal ground
for forfeiting the principal lease, then the mere declaration of
a forfeiture by the lessor or an agreement between him and the
lessee that the lease was cancelled would not affect respondent's
rights. The lease contained no provision which terminated it in
the event of fire, and Stanton continued to occupy the premises
and to pay rent for some months after the fire. The building
belonged to Stanton and he repaired it after the fire, and
continued to do business in it. He continued to pay the rent to
the lessor until December {*695} 17, when he turned over
possession to appellant, to whom he had both assigned his lease
and sold the building. Appellant paid the remainder of the rent
for the month of December in accordance with the terms of the
lease, which had been assigned to him and under which respondent
held as subtenant. The new lease which Forster made to appellant
also specially recited that it was made subject to the terms of
the former one. On the 17th day of December, a notice was served
upon Stanton that his lease was terminated for failure to pay
rent. But we have seen that the rent for the whole month of
December was paid by Stanton and appellant on that day, and the
evidence does not show that the lease had been previously
terminated. We are satisfied from the evidence that the notice of
termination was served at appellant's request for the purpose of
eliminating respondent. It served no other purpose, for the
reason that appellant had purchased Stanton's rights under his
lease, and Stanton had agreed to vacate. These facts we think
show no more than a voluntary relinquishment by Stanton of his
rights under the lease. The interest of an under-lessee cannot be
defeated by the mesne lessee's surrendering his estate in the
premises to the lessor.
"When, before a surrender, third persons have acquired interests
in the demised premises, a surrender by the lessee cannot affect
their rights; as to them the surrender operates only as a grant
subject to their rights, and the interest surrendered is
considered as continuing to exist so far as is necessary to
preserve their rights." 18 Am. & Eng. Ency. Law (2d ed.), p. 366.
See, also, Taylor, Landlord & Tenant (9th ed.), § 111; 2 Current
Law 676; Eten v. Luyster, 60 N.Y. 252; Gaskill v. Trainer, 3 Cal.
334; Hessel v. Johnson, 129 Pa. St. 173, 18 Atl. 754, 15 Am. St.
716, 5 L.R.A. 851.
The lease provided that the entire premises could not be sublet
without the written consent of the lessor. It was not provided,
however, that a part of the premises could not be {*696} sublet.
The expressed provision with regard to the whole we think leaves
it to be fairly inferred that a part could be sublet without such
consent, and respondent's sublease was for a part only. However,
even if the provision for written consent applied to respondent's
lease, we think the conduct of the lessor showed an acquiescence
and a waiver of the provision. There was, therefore, no breach of
the conditions of the lease by reason of subletting without
consent of the lessor, which furnished ground for a forfeiture as
alleged in the complaint; and in any event, the attempted
forfeiture was placed upon the ground of nonpayment of rent as a
breach of the covenants of the lease. We think appellant is not
in a position to urge that there was a forfeiture. He purchased
the lease and the rights of Stanton, and succeeded to the
obligations of Stanton thereunder. He initiated the purchase on
December 1st, and completed it by making final payment on
December 15th. This was prior to the attempted forfeiture on
December 17th, and since he stood in Stanton's shoes, the alleged
forfeiture was the result of his own neglect, and he should not
now be permitted to take advantage of it to respondent's injury.
Moreover, on the day of the attempted forfeiture, Forster, the
original lessor, accepted rent from both Stanton and appellant --
the payment being divided between them -- for the entire month of
December, under the original lease. If the payments were made
before service of the notice of forfeiture for nonpayment of
rent, the notice was without force, and if they were made after
the notice was served, the acceptance of payment of rent for the
entire month of December was a waiver of failure to pay December
1st. Appellant himself not only thus paid the rent to the
original lessor, but he accepted rent from respondent under his
sublease. Respondent paid Stanton for his part of the month of
December up to the time Stanton sold to appellant, and he also
paid appellant for the remainder of the month. This appellant
accepted, knowing that it was rent paid under {*697} respondent's
sublease. Such acceptance of rent is in law an admission of the
continuance of the tenancy. 18 Am. & Eng. Ency. Law (2d ed.),
385; Collins v. Canty, 6 Cush. 415; Gulf etc. R. Co. v.
Settegast, 79 Tex. 256, 15 S.W. 228; Pettygrove v. Rothschild, 2
Wash. 6, 25 P. 907.
It is also alleged by respondent that appellant accepted from him
the further sum of $ 600 as rent under the sublease. That he did
receive $ 600 appellant admits, but he denies that he accepted it
as rent. He says that he accepted it merely as part payment on
damages he had sustained by reason of respondent's retention of
the premises. The check which he received stated that it was on
account of rent, but the receipt which he gave stated that the $
600 was received on account without prejudice. Even if it be
true, in view of the receipt and of appellant's testimony, that
it may not have been for the court to say that the payment was on
account of rent, nevertheless, as we have stated, the evidence
clearly showed that appellant did receive rent from respondent
for the balance of the month of December, after appellant became
the owner of the original lease as lessee thereunder, and that
continued the relation of landlord and tenant between him and
respondent.
It cannot be maintained that appellant does not claim as assignee
under Stanton, and that he does claim only as lessee under the
new lease from Forster. That new lease expressly stated that it
was made subject to the Stanton lease. Appellant obtained no
rights under the new lease as against the Stanton lease. He fully
acquired the Stanton lease December 15, which was prior to the
alleged forfeiture. He therefore stood in the place of Stanton as
the landlord of respondent, and he is not in position to urge a
forfeiture of the Stanton lease, which could then have occurred
only through his own neglect or voluntary surrender.
Appellant has assigned some special errors upon the introduction
of testimony, but we have discussed the essence of {*698} the
controversy, and we do not think there were any errors in the
particulars named which were sufficiently prejudicial to
appellant to have changed the result, even if appellant's
contention thereon were maintained. A discussion of them would
therefore be unprofitable, especially in view of the necessarily
extended discussion of the more vital points in the controversy.
We believe the court did not err in its decision, and the
judgment is affirmed.
DISPOSITION
Affirmed.
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