23 Or. 119 | Or. | 1892
This was an action of forcible entry and detainer originally brought in the justice’s court for East Portland precinct, where the plaintiff secured a judgment, from which the defendant appealed to the circuit court; and the cause coming on to be heard before a jury, a judgment of nonsuit was given against plaintiff upon motion of defendant; whereupon the cause was appealed to this court and the judgment of nonsuit reversed (21 Or. 208), and a new trial ordered, which said trial was subsequently had before a jury and a verdict rendered in favor of defendant for his costs and disbursements, from which judgment this appeal is taken.
The assignments of error relate wholly to exceptions taken to the instructions of the court. In respect to those instructions to which the plaintiff excepted, relating to the evidence introduced by the defendant, there was no error. In these instructions the trial court only laid down the rule of law applicable to the defendant’s side
While there is some confusion in the evidence of the parties as to what was the agreement, there does not seem to be any evidence upon which the inference can be predicated that the leasing was for a definite time or for the specific term of one month, which was renewed from month to month by the defendant holding over, and the consent of the plaintiff implied from his acceptance of the rent. The evidence for the plaintiff shows that the defendant remained in the occupation of the building several months, and paid therefor fifty dollars a month rent, and that the plaintiff notified him that he would increase the rent, and upon defendant’s refusal to pay more than fifty dollars (which he tendered), the plaintiff gave him ten days’ notice to quit.
Counsel seem to be agreed that if the tenancy was at will, or from year to year, at a monthly rental of fifty dollars, that thirty days’ notice was necessary to terminate it. But upon the theory that the evidence showed that the leasing was for a specified term of one month only, the giving of thirty days’ notice, as the court charged, the counsel for the plaintiff contends was incorrect. We have examined the evidence for the plaintiff, and we are unable to discover anything in it, or any inference to be drawn from it, that the leasing was for any definite period of time, as one month. The circumstances under which the defendant entered and remained in possession of the premises, negative any such assumption. Nowhere does the plaintiff’s evidence indicate that any time was specified or agreed upon, but the inference to be drawn from the facts and circumstances arising from the entry, possession, and payment of rent as detailed by him, tend strongly to show that he understood the tenancy was to continue for a longer period than one month. The defendant testifies that they made a verbal agreement for five years at fifty dollars monthly rental, and that it was
It is the duty of the court to confine its instructions to the particular facts in evidence, as these are all the jury have a right to consider. To have instructed the jury, upon the theory of the plaintiff’s contention, the court would have necessarily assumed that there was some evidence tending to show that there was a contract for a definite term of one month. Such an instruction would have been based upon facts not warranted by the evidence. We think, therefore, that the court, when instructing the jury upon the evidence for the plaintiff, in refusing to adopt the rule of law invoked, committed no error. In thus disposing of this case, we may say that the force of this objection was pressed upon the attention of counsel. As to the objection in respect to the costs, it is sufficient to say that our statute provides the manner of settling cost bills, and that the objection is not before us in a manner that we can consider.
It results that judgment must be affirmed.