Hayton v. Seattle Brewing & Malting Co., 66 Wash. 248, 119 Pac. 739 (1911).


 248    HAYTON v. SEATTLE BREWING & MALTING CO.
                    Opinion Per PARKER, J.           66 Wash.

      [No. 9906. Department One. December 16, 1911.]
WILLIAM HAYTON et al., Respondents, v. SEATTLE BREWING
               & MALTING COMPANY, Appellant. «1»

LANDLORD AND TENANT - LEASE - SALOON PREMISES - TERMINATION -
ADOPTION OF LOCAL OPTION. The adoption of local option
prohibiting the sale of liquors in a town does not terminate a
lease of premises used for a saloon, or relieve the lessee from
the payment of rent, where the lease merely provided that the
lessee may conduct a saloon on the premises in conformity to the
ordinances of the town and the laws of the state then in force or
thereafter enacted; since it is merely permissive and not
restrictive as to the uses to which the property may be put.

Appeal from a judgment of the superior court for King
county, Ronald, J., entered June 14, 1911, upon findings in
favor of the plaintiffs, in an action for rent, upon sustaining
a demurrer to an affirmative defense, after a trial on the
merits. Affirmed.

Wm. A. Greene and Geo. McKay, for appellant.

Thomas Smith and J.L. Corrigan, for respondents.

PARKER

PARKER, J. - This is an action to recover two months' rent
claimed to be due to the plaintiffs from the defendant under a
lease to it of a lot and building in Mount Vernon. From a
judgment in favor of the plaintiffs, the defendant has
appealed.

The questions here presented arise upon appellant's
affirmative defense, the demurrer thereto of the respondents,
and the sustaining of that demurrer by the trial court. The
affirmative defense thus excluded was, in substance, as
follows: The term of the lease is five years, being from
November 9, 1907, to November 9, 1912, at an agreed monthly


«1» Reported in 119 Pac. 739.

           HAYTON v. SEATTLE BREWING & MALTING CO.      249
 Dec. 1911               Opinion Per PARKER, J.

rental of $100. The only provision of the lease relating to
the use of the premises by appellant, is the following:

"It is further understood and agreed that the said party
of the second part may during the life of this lease carry
on and conduct a retail saloon business in the building now
on the north part of said lot four provided, that the
conducting of said business is done in conformity with all
ordinances of the city of Mount Vernon, now in force or that may
hereafter be enacted, as well as all laws of the state of
Washington now in force or that may hereafter be enacted."

Under the local option law of 1909, Rem. & Bal. Code,
SSSS 6292-6314, there was submitted to the electors of the city
of Mount Vernon in November, 1910, the question of whether
or not the sale of intoxicating liquors should he licensed
that city. Thereupon the electors voted against such
licensing, thereby rendering the sale of intoxicating liquors
unlawful in that city thereafter. The rent sued for accrued
thereafter. Appellant abandoned the premises and tendered
possession thereof to respondents before the accruing
of these rent installments sued upon.

It is contended that the trial court erred in holding that
these facts did not constitute a defense to respondent's claim
of rent due under the lease. It is argued that the purpose
for which the premises were leased becoming unlawful upon
the result of the local option election being ascertained, the
lease contract thereby ceased to be binding upon appellant.
It seems to us that this argument is rested upon an erroneous
view of the effect of the language of the lease relating to the
use of the premises by appellant. It is apparently assumed
by counsel for appellant that the provisions of the lease
above quoted restricts the use of the premises to saloon
business. We think that provision does not have such an
effect. It is only permissive in that respect, and clearly
does not prevent appellant from using the premises for any
lawful purpose. The decisions of the courts appear to be
harmonious in support of the view that, under such

 250    HAYTON v. SEATTLE BREWING & MALTING CO.
                    Opinion Per PARKER, J.           66 Wash.

circumstances as are disclosed by this defense, the lessee
cannot regard the lease as terminated by the changed legal
status of the liquor traffic, and thus avoid payment of
the rent agreed upon by the terms of the lease. The following
appear to be directly in point, involving leases where
the use of the premises for saloon purposes was merely
permissive, as in this least: Kerley v. Mayer, 10 Misc. Rep.
718, 31 N.Y. Supp. 818, affirmed by Court of Appeals in
155 N.Y. 636, 49 N.E. 1099; O'Byrne v. Henley, 161 Ala.
620, 50 South. 83, 23 L.R.A. (N.S.) 496; San Antonio
Brewing Ass'n v. Brents, 39 Tex. Civ. App. 443, 88 S.W.
368. In the following cases the courts express the view
that the lessee would be held liable for the payment of the
rent under such circumstances as we have here, even though
by the terms of the lease the use of the premises be
restricted to the saloon business: Goodrum Tobacco Co. v.
Potts-Thompson Liquor Co., 133 Ga. 776, 66 S.E. 1081,
26 L.R.A. (N.S.) 498; Houston Ice & Brewing Co. v.
Keenan, 99 Tex. 79, 88 S.W. 197; Hecht v. Acme Coal Co.
(Wyo.), 113 Pac. 788. The last cited case, decided in
February, 1911, contains an exhaustive review of the law
upon the subject.

Counsel for appellant rely upon Heart v. East Tennessee
Brewing Co., 121 Tenn. 69, 113 S.W. 364, 130 Am. St.
753, 19 L.R.A. 964. This is the only decision coming to
our notice which seems to he not wholly in harmony with
those above cited. It is not plain from the language of that
decision just what the provisions of the lease were as to the
use of the premises by the lessee, but it may he inferred from
the language of the court that it regarded the lease as
restricting the use of the premises to saloon purposes. If
we are correct in this assumption, that decision would not
necessarily be out of harmony with an affirmance of this
judgment, since we conclude that this lease did not so
restrict the use of the premises, but that its provisions in

           MALLETT v. SEATTLE, RENTON ETC. R. CO.      251
 Dec. 1911                    Syllabus.

that respect were merely permissive. That decision, however,
does not seem to be in accord with the weight of authority
upon this subject, even though it may be distinguishable
from the case before us. The result reached by
this court in Oldfield v. Angeles Brewing & Malting Co.,
62 Wash. 260, 113 Pac. 630, is in harmony with the result
reached by the trial court in this case, though this exact
question was not there involved. We are of the opinion that
the learned trial court was not in error in declining to
entertain appellant's affirmative defense.

The judgment is affirmed.

DUNBAR, C.J., MOUNT, FULLERTON, and GOSE, JJ., concur.