Lumberman's National Bank v. Minor, 133 P. 87

133 P. 87 | Or. | 1913

Mr. Justice Eakin

delivered the opinion of the court.

If the objection to the lease “that there was no lease at all” may be held to include the sufficiency and form of the assignment, then it appears that Jerome, who executed the assignment in the name of the lessee, was the agent of the lessee, who negotiated and executed the lease in the name of the company in the first place, and who therefore had apparent authority to execute the assignment. This conclusion is confirmed by the testimony. It also appears by the evidence that Jerome had the oral consent of the lessors to assign it.

1. The right to terminate the lease upon 60 days’ notice reserved by the lessors is not an arbitrary right but is only to be exercised in case tbe lessors sell or lease for a term of years all of lot 5, block 19, City of Portland, upon which the' storeroom at .132 Third Street is situated. Therefore the objection that the instrument tendered was not a valid lease is without merit.

2. It is objected in the brief that the building was occupied, and therefore not available to Greenfield; but this contention is without foundation as the lessee vacated the building on October 8th, and Greenfield at the time of the tender made no valid objection to the léase, nor has he done so” at any time since.

The location and the building certainly were satisfactory to Greenfield. It is practically so admitted in the brief, and it appears that he tried to circumvent Stickney and to procure a lease for the same property from another source, well knowing that Stickney held an unexpired lease thereon, and that F. E. Smith & Co., with whom he sought to deal, had no power’to make another lease covering the time of Stickney’s lease; but, by agreement with Stickney and before consummating a lease with Greenfield, Smith did obtain the co-operation of Stickney and executed with Greenfield a lease covering the interest held by Stickney. As said in Greenfield’s brief: “Honest dissatisfaction prevents recovery.”

Both parties cite and rely upon the case of Livesley v. Johnston, 45 Or. 30, 48 (76 Pac. 13, 946, 950, 65 L. R. A. 783, 106 Am. St. Rep. 647), in which it is said:

“In a sale like the one at bar the buyer must also accept, unless in his honest judgment, exercised in absolute good faith, the commodity is not such as was contracted for. If so exercised, his determination becomes final, because the parties have so agreed; but if he exercises his judgment arbitrarily, capriciously, or fraudulently, with the sheer purpose of avoiding Ills obligation to accept, it will not avail him, as tbe actual quality and condition of tbe bops may then be inquired into, notwithstanding his adverse determination. ’ ’

This we understand to be a correct statement of the law. In Zaleski v. Clark, 44 Conn. 218 (26 Am. Rep. 446), cited by Greenfield upon this point, there was no question of defendant’s honest dissatisfaction raised either in the pleadings or by the proof. The court expressly says: “The case shows that she was not satisfied with it [the bust].” While the same court in Hawken v. Daley, 85 Conn. 16 (81 Atl. 1053), makes the defense depend on an honest dissatisfaction. In the case of Lynn v. Baltimore & Ohio R. R. Co., 60 Md. 404 (45 Am. Rep. 741), it is held that, no matter how erroneous or mistaken was the judgment of the party to be satisfied, it was conclusive between the parties unless tainted with fraud or bad faith; but, if the party rejected the tender in bad faith, plaintiff can recover. In Doll v. Noble, 116 N. Y. 230 (22 N. E. 406, 5 L. R. A. 554, 15 Am. St. Rep. 398), it is held that defendant cannot defeat a recovery by arbitrarily or unreasonably declaring that the work was not done to his satisfaction. Greenfield’s-bad faith in the refusal of the lease tendered by Stickney is shown in his attempt to circumvent that tender by endeavoring to get a lease and the possession of the same property from another source. It is apparent that a refusal to accept the lease tendered was not made in the exercise of an honest judgment in the premises. We conclude that Greenfield was satisfied with the lease, but that he arbitrarily and for the purpose of taking an unfair advantage of Stickney feigned a dissatisfaction with it, and that he has no right to the certificate of stock.

The decree of the lower court should he reversed and one entered here directing that the certificate he delivered to Stickney, that he recover his costs, and that the costs of plaintiff as established by the Circuit Court be adjudged against Greenfield.

Reversed : Decree Rendered.

Mr. Chief Justice McBride, Mr. Justice Bean and Mr. Justice McNary, concur.