under our statute, an attachment can issue in an equitable action.

(No. 2517. Decided June 30, 1898.

A. E. HART, Respondent, v. P. R. PRATT et ux., Ap

pellants.

LANDLORD AND TENANT-SURRENDER OF LEASE-EVIDENCE- AGENCY

Although a lease for a term of years may be required by the statute of frauds to be put in writing, a writing signed by the lessee and delivered to the reversioner is not necessary in order to effect a surrender of the leasehold interest, if there are acts which are equivalent to an agreement on the part of the tenant to abandon, and on the part of the landlord to resume, possession of the demised premises.

A jury is warranted in finding that a tenant surrendered his interest under a lease, when the evidence shows he knew of the sale of the premises, and, after demand that he remove, gave up control of the property, offered to do work about the place in consideration of the use of the dwelling house occupied by him, and declined to leave in the end, on account of a difficulty he had with the purchaser's agent.

A tenant may make surrender of his interest under a lease to the reversioner's agent, as well as to the reversioner himself. Declarations of a party to the record, not given for the purpose of impeachment, are admissible against him as independent evidence in chief.

Under Code Proc., § 564, double damages may be awarded against the defendant in an action of forcible entry and detainer, where there is substantially a claim for such damages stated in the complaint.

Appeal from Superior Court, Chehalis County.-Hon. MASON IRWIN, Judge. Affirmed.

W. H. Abel, and Hogan & McGerry, for appellants. Austin E. Griffiths, for respondent.

June, 1898.]

Opinion of the Court- ANDers, J.

The opinion of the court was delivered by

ANDERS, J.-This was a proceeding under the statute relating to forcible entry and detainer (2 Hill's Code, § 547 et seq.; Bal. Code, § 5525 et seq.), to recover possession of a certain farm situated in Chehalis county, and particularly the possession of a certain dwelling house thereon. On June 10, 1894, the respondent, plaintiff below, and one J. H. Dowd were the owners of the premises in question, and on that day executed a written lease of the same, together with all the horses, cattle, hogs, farming machinery, tools, implements and other personal property used on said farm, and purchased therewith, with the appurtenances, for the term of three years. Respondent Hart was a resident of the state of Illinois and said J. H. Dowd was a resident of Kentucky. The former, at or about the time the lease was made, executed to one Hutchcraft, a general power of attorney, authorizing him, among other things, to sell her interest in the leased lands. The appellant P. R. Pratt, defendant below, was the agent of Dowd and authorized to dispose of Dowd's interest in the property. These lessees took possession of the farm and other property included in the lease, on or about June 20, 1894, and conducted the business of general farming thereon under a partnership agreement between themselves, up to June 20, 1895, at or about which time appellant Pratt, as he states in his testimony, ceased to take any part in the business.

The respective pleadings in the case are in some respects quite indefinite and contain allegations which might be construed to be inconsistent, but their sufficiency has not been challenged by either party, and we have therefore considered them as we think they were understood by all parties at the trial in the lower court. The complaint purports to state two causes of action, the first being forcible

36-19 WASH,

Opinion of the Court - ANders, J. [19 Wash.

detainer of a dwelling house, barn, etc., and the second an unlawful detainer of the lands in question generally, and of a certain dwelling house and appurtenances situated thereon in particular. But, inasmuch as it is alleged in the complaint that the premises were, on June 10, 1894, leased to appellant P. R. Pratt and his co-lessee, as we have stated, and inasmuch as the term had not expired at the time this action was instituted, it follows that the respondent was not entitled to recover upon either cause of action, unless appellant had actually surrendered his leasehold interest to the landlord; and whether or not he had surrendered his lease was considered the sole question for determination at the trial. The complaint alleged that, about the 20th of June, 1895, said defendants, acting by and through defendant P. R. Pratt and said Hutchcraft, for a valuable consideration, surrendered and yielded up said lease to said premises; and, on or about said date, said Dowd sold and conveyed to plaintiff all his right, title and interest in the said premises, and plaintiff became the sole owner in fee of said premises; and said defendants, after the surrender and termination of said lease as aforesaid, promised, undertook and agreed to vacate said premises on or about the expiration of three weeks from said 20th day of June, 1895, and to remove themselves, family and personal effects, horses and cattle, entirely therefrom, and to yield up the peaceable possession of said premises to the plaintiff. The answer denied that the lease was surrendered up and alleged that on or before the 20th day of June, 1895, one G. W. Maxon negotiated with the said Hutchcraft as the agent of plaintiff, and with P. R. Pratt, as agent of J. H. Dowd, to convey all of Dowd's interest in the premises mentioned in the complaint and known as the "Block-house Smith" farm, subject to all the incumbrances thereon; in consideration of which the said

June, 1898.]

Opinion of the Court-ANDErs, J.

Maxon promised to convey to plaintiff and Dowd certain real estate in California; that thereupon, and on or about said date, said Hutchcraft, as the agent of plaintiff, purported to execute, and said P. R. Pratt did execute, as agents of their respective principals, quitclaim deeds to said Maxon of all of said premises, the deed executed by Pratt having blank grantee, and thereby conveyed unto the said G. W. Maxon all the interest of the said J. H. Dowd in and to said premises; that thereupon the said Maxon executed unto the said J. H. Dowd a quitclaim deed for certain real estate in California, and thereupon purported to execute to plaintiff a quitclaim deed to certain other real estate in California; that said Maxon was the agent of plaintiff in said transfer, and that the purported trade between plaintiff and Maxon was in reality no trade at all; that thereafter the said Maxon conveyed to plaintiff said premises set out in plaintiff's complaint; that thereupon said Hutchcraft, acting as agent of plaintiff, claimed that, by negotiations with said Maxon, defendant Pratt had surrendered and yielded up the lease which he and Hutchcraft had of said premises, and thereupon, acting as agent of the plaintiff, ordered and notified him to vacate said premises; that during the said negotiations said Hutchcraft, as agent of plaintiff, secretly requested defendant, P. R. Pratt, to allow said Hutchcraft to arrange a trade with said Maxon, and not interpose for fear Maxon could not be induced to close the contract; that defendant Pratt would not listen to the solicitations of Hutchcraft; that defendant, however, made representations to Maxon for the purpose of making him believe that the lease heretofore mentioned had been surrendered and yielded up. The plaintiff, in reply, admitted that said Maxon bought said premises from plaintiff and said Dowd, and conveyed to said Dowd certain real estate in California, and also

Opinion of the Court - ANDERS, J.

[19 Wash. bought from plaintiff and Dowd all the personal property situated on said premises and used in connection therewith, in the tilling and stocking of said ranch, and that Maxon conveyed the same thereafter to plaintiff, and alleged that the transfer of said premises, together with the personal property thereon, and the surrender and termination of said lease, constituted one transaction, and that the defendant and Hutchcraft represented said Dowd and plaintiff in said transfer. The cause was tried to a jury, and they returned a verdict for plaintiff and assessed her damages in the sum of $62.50. Judgment was thereafter rendered by the court in favor of the plaintiff in double the amount of damages found by the jury, under § 564 of the Code of Procedure (Bal. Code, § 5542).

It was not claimed at the trial, nor was there any evidence to show, that the lessee, Pratt, had delivered to his lessor, or to the owner of the leased premises, any instrument or memorandum in writing surrendering his leasehold interest; and appellants claim that a surrender could only be effected by some writing signed by the lessee and delivered to the reversioner, and that the case ought not to have been submitted to the jury. While it is true, as a general proposition, that a surrender of a lease, considered as a conveyance of an interest in realty, can only be effected by some deed or other writing, under the statute of frauds, when such writing is necessary to the creation of the lease, it is equally true, under the authorities, that a surrender may result either from the express agreement of the parties, if acted upon, or by operation of law. Upon this proposition the law is stated by Wood in his work on Landlord and Tenant as follows:

"A surrender may arise either from the express agreement of the parties, or by operation of law. And, whenever a surrender is implied from the acts of the parties,