Gaffney v. Megrath

*458 The opinion of the court was delivered by Gordon, J.

This is an action of unlawful detainer, and for the recovery of rents, etc. In the court below a jury trial was waived. Findings of fact and conclusions of law were made and entered. From a judgment entered thereon in favor of the respondent this appeal is taken.

Much of the brief of appellants is devoted to discussing the regularity of the findings tested by the complaint; but it appears from an examination of the record that the learned counsel for appellants, in the preparation of his brief, overlooked the fact that re- • spondent was permitted to amend her complaint, and to the complaint as amended his objections are inapplicable and will not be considered.

The objection made to the fourth finding we do not consider is well taken. The complaint alleges that the appellants “ have, at all the times mentioned in this complaint after the 1st day of January, 1893, and for a long time previous thereto, been entitled to and subject to all the right, interest, title and conditions arising from the said lease and contract as such party of the second part thereto.” It was only material to know that the appellants became liable as lessees (or parties of the second part) at some time prior to the happening of the occurrences upon which respondent predicates her right to recover. The court so found.

Appellants, in their answer, claim that appellant Megrath parted with his interest in the premises on May 1, 1893, and they requested a distinct finding to that effect, which the court declined to make, and this is assigned as error. But this issue was determined against the appellants by the court’s finding (No. 8) that appellants “ are now in possession of the said premises,” etc., etc.

*459 Upon the facts as found by the court the appellants became liable for the performance of all of the conditions, and were bound by all of the stipulations contained in the lease devolving upon the parties of the second part. We think the complaint is sufficient to uphold the findings, and it is to be presumed (no statement of facts having been brought to this court) that the findings were warranted by the evidence produced on trial.

Appellants contend that the court failed to make conclusions of law agreeably to § 379 of the Code of Procedure, and cite the case of Bard v. Kleeb, 1 Wash. 370 ( 25 Pac. 467 ), in support of their contention. We do not think that case applicable to the point here sought to be made. The issues in this case were not complicated, and the facts found by the court lead to but one conclusion; they entitle respondent to judgment as prayed in the complaint. But, were we to concede the correctness of appellants’ contention in this regard, it could not work a reversal of the judgment. It would be the duty of this court, upon the facts found and certified here, to direct the proper judgment.

The remaining question is this: In her complaint respondent asks judgment for the sum of $861.29. Judgment was actually entered for $1,161.29, the court following the statute, § 564, Code Proc. This court has held in Hall & Paulson Furniture Co. v. Wilbur, 4 Wash. 644 ( 30 Pac. 665 ), that a plaintiff was not entitled to the double damages afforded by that section unless he specially claimed the same in his complaint, and that the prayer of the complaint should govern the recovery in such cases. We are satisfied with the conclusion reached in that case, and think it announces the correct rule of practice. We think further that the court’s conclusion of law did not authorize the entry *460 of judgment for any sum in excess of the $861.29, claimed by respondent in her complaint. It is to be presumed, however, that in this particular the court, upon application of the appellants, would have modified and corrected the judgment to conform to the prayer of the complaint. It does not appear that any such application was made to the lower court; hence we think that respondent is entitled to costs .upon this appeal. The money judgment will be reduced to $861.29, and, as reduced, the judgment is affirmed.

Hoyt, C. J., and Anders, Dunbar and Scott, JJ., concur.