This action was commenced by Wood and wife against Williamson and wife to recover possession of certain real property, consisting of a residence, belonging to the Woods and occupied by the Williamsons, for failure to pay the rent at the time provided in the lease under which the property was held. Because of a breach of a covenant of the lease to paint the house, judgment was also demanded for the cost of painting. Plaintiffs thereafter filed a supplemental complaint, in which they alleged the vacation of the dwelling, that they were entitled to $200 for its occupancy for two months, and for damages occasioned by the removal of certain of the fixtures. The original complaint was by agreement deemed denied, and an answer was interposed to the supplemental complaint, in which *Page 722 it was denied that $200 was a reasonable rent, but admitted that $120 was reasonable and that they were indebted to plaintiffs in that amount. They denied the allegations with respect to the fixtures; and a separate answer was set up by appellant N. Williamson in which, among other things, it was alleged that through a course of long dealing between the parties the covenant in the lease for the payment of rent in advance on the first day of each month had been waived and that a custom had been established of paying and receiving the monthly rent on or about the tenth of each month. The cause was tried to the court. Findings of fact and conclusions of law were made, and judgment was entered in favor of plaintiffs for the admitted rent, the value of the fixtures and the cost of painting the house. The defendants appeal from the judgment. They do not question the form of the action or that portion of the judgment for the rent and the removal of the fixtures.
It is first contended that the court erred in entering judgment against Mrs. Williamson. Respondents suggest that this was done through inadvertence. It is set forth in the findings that the cause was dismissed against the defendant Caroline Williamson. In their brief, respondents state that a "disclaimer" was fled by them as to Mrs. Williamson. Appellants made no effort in the lower court to have the judgment corrected. The judgment against Mrs. Williamson should be set aside.
Appellants argue that the court erred in making a finding that respondents were entitled to the possession of the premises when the action was begun, and that error was committed in failing to make certain findings on issues raised by the separate answer of N. Williamson to the supplemental complaint. The admitted voluntary surrender of the possession of the leased premises by the appellants and its acceptance by respondents made it unnecessary in this case for the trial court to pass on such issues, and a finding with respect to them was unnecessary to a determination of the remaining material issues. It was not reversible error, therefore, for the trial court to make, or to fail to make, findings with respect to the issues concerning which *Page 723 the assignment relates. (Harvey v. Deseret Sheep Co., 40 Idaho 450,234 P. 146; Koon v. Empey, 40 Idaho 6, 231 P. 1097;Shawver v. Shawver, 25 Idaho 70, 136 P. 436; Fouch v. Bates,18 Idaho 374, 108 P. 1038.)
It is contended that the judgment for the cost of the painting of the house should not have been allowed. The lease contained a covenant that the lessee would "paint or cause to be painted the said dwelling-house in a good workmanlike manner at his own cost and expense early in the spring of 1925." This covenant was not dependent on any act to be performed by the lessors, but was an independent covenant to make an improvement within a definite and specified period. The lessee was in possession of the premises when the covenant should have been performed. The relation of landlord and tenant was in no manner questioned until after the time for making the improvement had expired. In order to escape liability for the breach of the covenant, it is contended that the lessors breached the lease by commencing this action. The lessor's action was begun after the time for performance of the covenant to paint had expired and had nothing whatever to do with the failure of the lessee to paint the house within the time provided. A right of action arises on such a covenant when the breach occurs, and it is not necessary to await the expiration of the term. (Tiffany, Landlord Tenant, vol. 1, pp. 774, 775; Davies v. Clark,10 A.D. 68, 41 N.Y. Supp. 826; 16 Rawle C. L. 1094; Adams v.Nichols, 19 Pick. (Mass.) 275, 31 Am. Dec. 137; Gubbins v.Glabman, 215 Ill. App. 43; Sipp v. Reich, 88 N.Y. Supp. 960;Schieffelin v. Carpenter, 15 Wend. (N.Y.), 400; 36 C. J. 173.) The failure to paint the house within the time provided therefor was admitted, and there was no error in entering the judgment. (Roe v. Conway, 74 N.Y. 201; Pollman v.Morgester, 99 Pa. St. 611.)
The judgment against Caroline Williamson will be set aside. The judgment against N. Williamson is affirmed. Costs to respondent.
Budge, Givens, Taylor and T. Bailey Lee, JJ., concur. *Page 724