Lewis v. Northwestern Warehouse Co.

127 P. 33 | Or. | 1912

Opinion by

Mr. Chief Justice Eakin.

Most of- the facts are stipulated, but some oral testimony was taken.

1. When defendant held over after the expiration of the lease, both it and the plaintiff treated the situation as a holding over under the terms of the lease of the previous year; and it only remains to determine whether by the terms of the lease a minimum rental was stipulated by the statements in plaintiff’s letter of October 10, 1906, namely, “It is also understood, of course, in the renewing of the agreement for another year that the usual amount of business will be done” — having reference to the renewal option reserved in the letter of October 9th. This condition is reiterated in plaintiff’s letter of date April 2, 1907, viz.: “Provided the business put through the dock is up to the normal volume which you have done from year to year.” Plaintiff’s original proposition or offer, of date October 5, 1906, was: “A flat rate of 15 cents per ton for passing over the dock and a rate of 4 cents per ton for scouring and grading would be, under present conditions, a fair charge to make”- — -defendant to bear the expense of the care of the dock. Defendant did not unconditionally accept this offer by its letter of October 9th, but added two additional terms, that defendant would pay half the expense of employing the watchman, and that it should have an option until April 1st for a renewal of the lease for another year; and plaintiff in accepting these conditions by letter of October 10th added the qualification above quoted therefrom.

It is disclosed by the testimony of Curry, defendant’s agent, that prior to the' correspondence he and'Lewis had a conversation about the rental of the dock, in which he said to Mr. Lewis that in past years defendant’s business had averaged from 50,000 to 60,000 tons; that he made that statement because he was asked to do so by Mr. Lewis as he wanted to know what the business had been as a basis upon which to make an offer for the rental;'that Curry knew as a matter of fact that, when Lewis wrote the letter of October 5th, it was on the assumption that defendant’s usual amount of business would be done during the year, and that witness understood from the letter of October 10th that defendant was to have the dock for the year ending July 1, 1907, on a tonnage basis, provided defendant did its usual amount of business; and, after receiving plaintiff’s letters of October 10th and April 2nd, defendant, without demur thereto, continued to occupy the dock, and thereby acquiesced in that condition. This, together with the clauses above quoted, clearly shows that Lewis was seeking to place a minimum limit upon the rental, and made that fact plain to the defendant. We find that the rental was to be computed upon the amount of grain handled, with a minimum limit according to the average business done by defendant in previous years; and that being the contract by the renewal for the year ending July 1, 1908, it became also the contract for the year ending July 1, 1909. There is no basis for determining the average business of defendant in previous years other than the statement of Curry, defendant’s agent, which seems to be accepted by both parties as the average. There is, however, a conflict between Curry and Lewis as to what Curry stated the average to be, plaintiff contending that Curry said the average was 60,000 tons. Curry testifies that he said from 50,000 to 60,000 tons. In view of the fact that, when the business exceeded the average amount, plaintiff had the benefit of the increased business, we are disposed to accept the smaller amount of 50,000 tons as the basis for computing the minimum rental, and find that judgment should have been rendered in the circuit court for the amount of $1,924.80, as the balance due.

2. It was urged at the argument that, in an action where the case was tried by the court, the findings of the court are to be deemed a verdict, and therefore conclusive on this court. If such findings are made from evidence erroneously admitted, or upon an erroneous view of the law, the findings based thereon will be disregarded. In State v. Rader, 62 Or. 37 (124 Pac. 195), in discussing this question, Mr. Justice McBride says: “The amended Section 3, Article VII, of our Constitution, provides that ‘no fact tried by a jury shall be otherwise reexamined in any court in this State unless, the court can affirmatively say that there is no evidence to support the verdict.’ Laws 1911, p. 7 (p. xxiv, L. O. L.). But, for a jury to find the fact the court must see that they receive only legal evidence, and no good finding of fact can ever be predicated upon illegal evidence.” And the same may be said of an erroneous view of the law. In City of Portland v. Nottingham, 58 Or. 1 (113 Pac. 28), Mr. Justice Burnett, in discussing a similar question, holds that the verdict “must be under the superintendence of the court. The rules of law applicable to the case must be declared by the court, and the action of the jury must be in obedience to those rules.”

We conclude that, if the court erroneously assumed that plaintiff was only entitled to rental upon the basis of the grain actually handled, his findings are subject to review. Therefore, under the provisions of Section 3, Article VII, of the Constitution as amended, the whole record of the case being before us, from which we can determine what judgment should have been rendered in the trial court, the mandate shall direct the circuit court to enter judgment for the plaintiff and against the defendant for the sum of $1,924.80, and for costs and disbursements in both courts. Reversed.