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present action was brought to recover damages for the wrongful withholding and for the use and occupation of the land and premises during the pendency of the former case in the supreme court, and for conversion of certain hop poles claimed by appellees; and the opinion is devoted to the consideration of the measure of damages for use and occupation, admissibility of evidence and practice questions.

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There is no statement of facts, and one cannot tell how the appellant came into possession of the land, but there is absolutely nothing to show any relation of landlord and tenant.

Mc Glauflin v. Holman, 1 W. St. 239, decided May, 1890, our supreme court held that a lease invalid for want of seals, but under which the tenant was in possession, had expended several hundred dollars for improvements, had paid rent to his lessor, who afterwards sold the premises, the vendee having full knowledge of the status of the tenant's claim, that the lower court was in error in refusing to allow the tenant to prove these facts as defense to an action by the vendee to dispossess him.

The wonder is that the lower court could have supposed that it might exclude such evidence. The action was from Spokane county. Judge Scott delivered the opinion in May, 1890.

This is the first case under our subject in the state reports. Pettygrove v. Rothschild, 2 W., p. 6, seems to have been an action of forcible entry and detainer upon the ground that the tenant had forfeited his lease by making alterations in the building, contrary to the terms of the lease, which alterations the plaintiff alleged to have been waste. The tenant answered that plaintiff was aware of the alterations at the time made, and plaintiff consented to receive accruing rent under the lease without notifying him that a forfeiture would be claimed, and that his conduct was a waiver of any right to claim forfeiture.

This matter was stricken from the answer by the lower court, and was reversed on appeal, Scott, J., delivering the opinion, February, 1891. This action was from Jefferson county. Schulte v. Schering, ib. 127, is a case very similar to Mc Glauflin v. Holman, supra, and which the supreme court very properly held fell within its doctrine.

In this case the tenant sued for special performance of defective

lease, and for injunctive process to prevent a vendee of his landlord from dispossessing him.

The lower court sustained a general demurrer to the complaint, and the supreme court reversed that action.

This case was from Pierce county. Judge Scott delivered the opinion, February, 1891.

Ralph v. Lomer, 3 W., p. 401, is a construction by the supreme court-(1) Of § 2056, Code 1881, which provides how a landlord may terminate a tenancy for non-payment of rent; and (2) of § 548 ib., which provides how a tenant may save himself from forfeiture and eviction by payment before judgment of the arrears of the rent, interest and costs of action; (3) that where the tenant remains in possession and pays rent, he cannot claim that he has been evicted by the acts of the landlord; (4) and further that in action of unlawful detainer, the tenant cannot counterclaim for damages for loss of business, depreciation of the value of furniture to be used on demised premises and for repairs alleged to be the results of the landlord's acts. Opinion by Anders, C. J., in December, 1891. Action is from Pierce county.

Johnson v. The Tacoma Cedar Lumber Co., ib. 722, is not a case of landlord and tenant, though put down as such. It is an action for personal injury, and the chief question of fact was by whom was the plaintiff employed. There is no question of landlord and tenant involved.

The action was reversed for an erroneous instruction as to whether the relation of master and servant existed between plaintiff and defendant at the time of the injury complained of.

In Isaacs v. Holland, 4 W. 54, the supreme court decided that, where the husband leases community land, the tenant not knowing the character of the land, tenant can only avoid performance of the terms of the lease by first demanding a valid lease and by surrendering premises in case of refusal.

Judgment reversed because of demurrer sustained to the answer of tenants alleging that both parties conceded the lease was void, premises surrendered; that new agreement for rent was made between landlord and tenant, under which defendants reëntered. Opinion by Scott, J., March, 1892. Action from Pierce county. Hall v. Wilbur, ib., p. 644, decided that lessee of tide lands from

person in possession cannot dispute title of lessor; no proof of title is necessary, because the tenant has accepted possession under his lease and is estopped, and that where the prayer of the complaint is for stipulated rent, the court cannot adjudge twice that sum. The statute is directory only and the prayer must govern the recovery. Decided 1892, July. Action from King county. Opinion by Stiles, J.

Collins v. Hall, 5 W. 367, decided that in action to recover rent where the tenant by answer denied the landlord's possession, that a prima facie case is made by introduction of the lease, in the absence of proof, the presumption being that when executed the lease was valid and binding on all parties; that the burden of showing facts which avoided its effect was upon the defendants, and no proof having been offered by defendants, judgment for plaintiff was sustained. The court here decided that this case substantially depended on the doctrine of Hall v. Wilbur, supra, and this is an approval of that case. December, 1892. Opinion by Hoyt, J., a

King county action.

Roderick v. Swanson, 6 W. 222, decides that where the tenant was in possession under a written lease, a purchaser of the land with full knowledge thereof cannot maintain ejectment or unlawful detainer on the ground that only a portion of the agreement had been reduced to writing, and that the tenant refused to accept from the purchaser a new lease containing the alleged omission. Proper remedy is a proceeding to correct the alleged mistake. 1893, April, Mason county, Stiles, J., and seems to be the only case in the books where farming land was the subject matter of the controversy.

Seattle v. Cavanaugh was a tide flats case where the supreme court held that a verdict of jury for defendant in action for unlawful detainer, will not be disturbed where the relation of landlord and tenant is not clearly established by the evidence. 1893, May. Opinion by Stiles, J. King county case.

Porter v. Tull, 6 Wash. 408, establishes the doctrine that where a building occupied by a tenant for which rent is payable monthly in advance, is destroyed by fire, tenant may recover money for the portion of the month remaining after the destruction of the demised premises. This was a Spokane case and was part of much similar litigation which resulted from our fire of August 4, 1889.

The writer did not preside in this trial below, but it occurred to him always in considering this opinion, that the supreme court thought the landlord had got what some of our people never tire of talking about, viz., "the unearned increment," whatever that is, and the supreme court evidently thought he ought not to have it, and so gave it to the other fellow.

The writer justified the conclusion of his learned associate who decided the case in the lower court on the ground—(1) That the contract was executed between the parties, and that all the advantages which went to either party under the contract, must be held to have been intended by the parties to the contract; the landlord had one such advantage; (2) that the contract for the payment of rent on the first day of each month in advance is an agreement for the payment of an entire sum; it is an entire contract, and, under the doctrine of the entirety of contracts must be sustained, and there is no law till Porter v. Tull, and no agreement for apportioning the rent earned and unearned.

In the very next case of Carraher v. Bell, 7 W. 81, the supreme court says of such a contract that the rent fell due in installments and the respondents are entitled to each as it became due: "Each was a separate, several and distinct claim, upon which a forfeiture could be founded for failure to pay." And it may be added, for the nonpayment of each, or any installment, an action might have been maintained.

But some one has said that a dissenting opinion is but a howl from out the darkness of adjudged cases, and so that performance will not be attempted here. May, 1893. Opinion by Dunbar, C. J. Spokane county action.

Carraher v. Bell, supra, decided that a landlord does not waive claim to forfeit a lease by collecting rents from sub-tenants after notice to his tenant to vacate, and applying collections to the payment of the installments of rent which fell due prior to that on which forfeiture is claimed. That is, he may collect the rents and apply them to installments which first became due and unpaid and claim forfeiture for subsequently maturing installments. In this case the landlord collected the rents under a stipulation. 1893. Opinion by Scott, J. King county action.

Tryon v. Davis, 8 Wash. 106, holds to the doctrine already es

tablished by our supreme court, that before a tenant of community property can abandon his defective lease he must demand a good lease from the landlord, and give him an opportunity to furnish it. And that in an action to recover rent under a lease, proof of lessor's ownership is unnecessary. 1894, January. Opinion by Dunbar, C. J. Spokane county action.

McLennan v. Grant, 8 W. 603, holds (1) That where one voluntarily dispossesses himself of the premises and another assumes possession from him for any determinate period, there is a tenancy whether the words appear to be a license, a covenant or an express agreement.

(2) That where possession was taken under a lease, neither the tenant nor his assigns can repudiate the lease because of uncertainty of description of the demised premises.

(3) That the assignee or purchaser of a tenant of his entire interest takes as under an assignment, no matter what the form of the instrument, and becomes tenant of the lessor, notwithstanding he may have had no notice that his grantor only held a leasehold interest.

(4) A lease having been established, that it was error to allow evidence that before the expiration of the term the lessor made no claim to the premises. He had no right to the premises till the term expired. 1894, April. Anders, J. Clallam county. (Property in Port Angeles.)

Noyes v. Loughead, 9 W. 325, is really not a case deciding anything on the law of landlord and tenant, it was an action on a bond for the payment of rent. It is rather a practice case, and construes the contract between parties as to the time when the lease began. June, 1894. King county case. Opinion by Hoyt, J.

Rucker v. Studebaker, 10 W. 386, is put down as a case of landlord and tenant, but is not. The action was to enforce payment of rent alleged to be due plaintiff from defendant. The only thing decided is that there never was any lease or any relation of landlord and tenant between the parties, and hence the trial court should have non-suited the plaintiff; and the judgment was reversed and the court below directed to dismiss plaintiff's action. 1894, December. Snohomish county action. Opinion by Stiles J.

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