Carmack v. Drum

Tbe opinion of tbe court was delivered by

White, J.

This is a summary action by the owner, under the statutes relating to unlawful detainer, to recover possession from the tenant of a lodging bouse in Seattle known as the “Eremont House,” and incidentally rent and damages for its wrongful detention. The action is based upon a tenancy from month to month, and the termination of the same by the statutory notice to quit. The appellants pleaded, in substance, as a separate defense, that on January 10, 1900, they entered into negotiations with one Alice Lewis for the purchase of the furniture in said house for $2,500; that before purchasing the same the appellants went to the respondent and entered into a contract with him, in which it was agreed that upon the purchase of the furniture, etc., the appellants should be let into possession of the house as tenants from month to month, as long as they should pay a reasonable sum per month as rent promptly when the same became due. In the event that the respondent should decide to rent to any other person, or to take the house for his own use, he agreed with, the appellants to reimburse them for the furniture, fixtures, and improvements, and to pay them therefor, before they should be compelled, to vacate the house, the full amount paid by the appellants to Alice Lewis for the furniture, etc., plus additional furnishings and improvements purchased by appellants subsequent to January 10, 1900, less reasonable wear and tear; that relying on such agreement, and in consideration of the respondent’s promise, the furniture, etc., was purchased from Alice Lewis for $2,500, and appellants went into possession of said house, have paid their rent promptly, and in every way complied with their part of the contract; that they have expended the sum of $400 in additional improvements, furniture, and fixtures; that they have demanded of the respondent $2,900, the value of the furniture and fixtures, but that the respondent refuses to pay for the same, and seeks by this action to dispossess them of the house, notwithstanding his agreement with them. The appellants further allege that, if respondent dispossesses them, the value of the furniture, etc., if removed from the house, would not he more than $1,000, and there would be a loss to appellants of $1,900 by such removal. A demurrer was interposed by the respondent to this defense and overruled. The respondent replied, denying the agreement set up in the affirmative defense, the additional improvements and fixtures, and the damage to the furniture in case of removal. On the trial, however, the court ruled that the appellants could not introduce any proof of the facts to sustain the defense, and announced that at the time he overruled the demurrer he was not satisfied that the contract pleaded by appellants could not be taken advantage of in this action, but that he now thinks redress of the appellants must be by a separate action. On this ruling he gave to the appellants an exception.

The refusal of the court to allow appellants to introduce proof to sustain the facts alleged in the defense is assigned as error. The respondent contends that the answer of a defendant in an action for unlawful detainer, under the statute, is confined to denials only. In support of this contention ho cites Barnum v. Fitz Patrick, 16 N. Y. Supp. 934, and Bloom v. Huyck, 71 Hun, 252 (25 N. Y. Supp. 7). This was at one time the rule in New York, because the laws of that state expressly provided that the tenant could answer only under a general or specific denial, and it was held that the tenant was therefore limited to denials. Becker v. Church, 42 Hun, 258. But this rule was after-wards changed" by statute so that the tenant might set up any new matter constituting a legal or equitable defense or counter-claim. 12 Enc. Pl.& Pr. 893, and note 4, and cases cited. Our statute provides that the tenant may answer, without any limitations as to the nature of the answer. Bal. Code, § 5538. We held, however, in Ralph v. Lomer, 3 Wash. 401 (28 Pac. 760), and Phillips v. Port Townsend Lodge, 8 Wash. 529 (36 Pac. 476), that the tenant could not set up in his answer an equitable defense, set-off, or counter-claim.

The contract pleaded as a defense is a severable contract. The contract creating the monthly tenancy is that the tenant pay for the possession of the house a reasonable sum promptly when the same becomes due. This contract, under the law, can be terminated on a twenty day notice. The right to remain in the house until the furniture, improvements, etc., are paid for, is part of the contract relating to the purchase of the furniture, improvements, etc. Por a breach of this independent contract, compensation can be awarded in damages, as for the breach of any other contract, both for the value of the furniture and improvements, and loss to the appellants for not purchasing the furniture at the time agreed upon: that is, when the respondent elected to repossess himself of the premises.

“Where an agreement embraces a number of distinct subjects, which admit of being separately executed and closed, the general rule is that it shall he taken distributively, and each subject be considered as forming the matter of a separate agreement after it is so closed.” Dugan v. Anderson, 36 Md. 567 (11 Am. Rep. 509).

“When the price is expressly apportioned by the contract, or the apportionment may be implied by law to each item to he performed, the contract will generally he held to be severable.” More v. Bonnet, 40 Cal. 251 (6 Am. Rep. 621).

“The criterion for determining whether a contract is entire or separable is thus stated by Mr. Parsons in his work on the Law of Contracts: ‘If the part to he performed by one party consists of several and distinct items, and the price to be paid by the other is apportioned to each item to be performed, or is left to he implied by law, such a contract will generally be held to be severable.

. . . But if the consideration to be paid is single and entire, the contract must be held to be entire, although the subject of the contract may consist of several distinct and wholly independent items.’ 2 Pars. Cont. 29-31. This rule of classification is based on a distinction so simple that it may be easily understood and readily applied. It is the consideration to be paid, and not the subject or thing to be performed, that determines the class to which a contract belongs. Its entirety or separableness depends not upon the singleness of its subject, or the multiplicity of the items composing it, but upon the entireness of the consideration, or its express or implied apportionment to the several items constituting its subject. If the consideration is single the contract is entire, whatever the number or variety of the items embraced in its subject; but if the consideration is apportioned, expressly or impliedly, to each of these items, the contract is severable.” Lucesco Oil Co. v. Brewer, 66 Pa. St. 351.

Applying the rules laid down in the cases cited to this case, it is manifest that the contract is severable. There is a stipulation to pay for the premises a reasonable monthly rental, — one entire contract. There is a stipulation to pay for the furniture and improvements what they are worth at a certain time, and an implied agreement to pay damages for failure to buy the furniture at such- time, — another entire contract. The'agreement to pay for the furniture, etc., and damages for non-compliance therewith, is the subject matter of an independent action. That being the case, for a breach of this independent contract the appellants should be remitted to their action at law, as for the breach of any other ordinary contract. The ruling of the court below in refusing to receive the evidence to sustain this defense was therefore correct.

After the notice to quit was served, and before this action was commenced, the appellants commenced an action against the respondent in the superior court setting up substantially the same facts set up in the defense, and praying that the respondent be restrained from terminating the tenancy. The pendency of the equitable action was pleaded as a second affirmative defense, by way of an abatement to this action. A demurrer to this defense was interposed, and the same was sustained by the court. This is also assigned as error. We have held that the matter set up in the suit in equity was the subject matter of an independent action at law. That being the ease, there were no grounds for equitable interference, and the court properly sustained the demurrer to this defense.

After the case closed, and a motion had been made by the appellants for an instruction to the jury to find a verdict for the appellants on the ground that there had been no proof of service of the notice to quit, the court reopened the case, and allowed the respondent to recall a witness to prove such service. This is assigned as error. Inasmuch as the record fails to show any abuse of discretion in that respect, we hold that tire action of the court was right and proper.

It is assigned as error that the court erred in directing a verdict for the respondent. On the evidence before the court, the court did not err in so doing, as the evidence sustained the allegations in the complaint, and there was no evidence introduced by appellants to rebut the same. The first error assigned, touching the notice to quit, was waived by the appellants on the hearing of this appeal.

The judgment of the court below is therefore affirmed, with costs to the respondent.

Reavis, C. J., and Fullerton, Anders, Mount and Hadley, JJ., concur.