Meagher v. Eilers Music House

150 P. 266 | Or. | 1915

Mr. Justice Harris

delivered the opinion of the court.

Testimony to the effect that the storeroom leased to the plaintiff is known as room 4, and also No. 144 Broadway, a certified copy of a complaint, and a certified copy of an order adjudging Farrell to be in default in an action at law wherein the Eilers Music House appears as plaintiff and R. E. Farrell is named as defendant constitute all the evidence offered by plaintiff. The certified copy of a complaint discloses that the Eilers Music House sought to recover $500 from R, E. Farrell on two causes of action, one of which is founded upon the claim that Farrell had on October 7, 1913, leased a store on the ground floor facing Broadway in the Eilers Building for $250 for one month; and it is related in the second cause of action that on November 7, 1913, the Eilers Music House and Farrell entered into a written agreement whereby the latter leased No. 144 Broadway for a term of four years and eleven months at a rental of $250 per month, payable on the 7th day of each month, and that on December 7th the sum of $250 became due, and had not been paid. No evidence was offered by plaintiff to show whether the room rented to Farrell on October 7th was room 4 or No. 144 Broadway, or was the same room that was leased to him on November 7th, although at the trial counsel for defendant admitted:

“That we permitted Farrell to occupy or go in there from day to day, with the understanding that he must get out as soon as the other man would return.”

The contention of plaintiff proceeds upon the theory that evidence of a reletting by the corporation is enough to warrant a finding that the lease was terminated, and that therefore he is entitled to recover the deposit less the amount of rental due on October 7th, when the reletting occurred; and the position of defendant is that proof of a reletting does not justify a finding that the agreement of lease was constructively or otherwise ended. The plaintiff does not allege a technical surrender of the premises, nor does he claim that defendant agreed to release him, but he rests his right to recover upon the allegation that the ‘ ‘ defendant on the 7th day of October, 1913, elected to and did declare the said lease forfeited, and rented the same to one E. E. Farrell.” The reason for the leasing to Farrell does not appear, except as detailed in the answer, which, however,- is denied by the plaintiff, so that the situation presented here is one where there is an agreement of lease binding the plaintiff for a definite period, a default in the payment of rent, a reletting and a provision in the written agreement giving the landlord the right to re-enter and “repossess itself as of its former estate” in case the rent shall be in arrears for a space of five days “without prejudice to any remedies which might otherwise be used for arrears of rent or preceding breach of covenant.”

1, 2. Having admitted the making of the agreement of lease which obligates him to pay rent, the plaintiff must, as a part of his case, offer evidence tending to show some occurrence which either lessens or extinguishes the obligation assumed by him, because the plaintiff is by his own admission liable for the full amount of the stipulated rent, unless in the language of the complaint the defendant “elected to and did declare the said lease forfeited and rented the same to one E. E. Farrell.” If the landlord did “repossess itself as of its former estate,” and relet to Farrell, then plaintiff was relieved from the stipulations of the lease. The evidence showing a reletting to Farrell fails to disclose that the room was rented subject to the rights of Meagher or for his benefit, but it tends to reveal the contrary. The evidence offered by plaintiff tended to show the fact of reletting of a character which would be sufficient to authorize a finding that defendant had, pursuant to the terms of the written agreement, repossessed itself “as of its former estate,” in which event the plaintiff would only be liable for arrears of rent or preceding breaches of the contract; and therefore the motion for a judgment of nonsuit should have been denied. In Ladd v. Smith, 6 Or. 317, a surrender of a lease was by operation of law implied from a reletting.

3. There is nothing in the record binding upon plaintiff and tending to show that the reletting was for his benefit, as alleged in the answer; but, if the tenant offered to surrender, and the landlord without accepting the surrender relet to Farrell, under all the circumstances recited in the answer, then the rule announced in Bowen v. Clarke, 22 Or. 566 (30 Pac. 430, 29 Am. St. Rep. 625), Humiston v. Wheeler, 175 Ill. 514 (51 N. E. 893), Respini v. Porta, 89 Cal. 464 (26 Pac. 967, 23 Am. St. Rep. 488), and kindred cases, becomes applicable.

4. In his primary pleading the plaintiff concedes the right of the defendant to rent for the first seven days in October. No part of the deposit can be retained by the defendant to satisfy any installments after November 30, 1913, because the allegation in the answer that the premises were subject to the order and ready for the occupancy of plaintiff at all times until November 30, 1913, is equivalent to saying that the premises were not subject to the order of plaintiff or ready for him after November 30,1913.

5. The complaint filed by the Eilers Music House in the action against Farrell is relevant evidence, because it contains certain admissions or declarations against the interest of the defendant in the instant case, and the fact that Meagher was not a party to that proceeding does not affect the competency of the evidence: Feldman v. McGuire, 34 Or. 309 (55 Pac. 872); Murphy v. Hindman, 58 Kan. 184 (48 Pac. 850); 16 Cyc. 1050. The only objection offered to the certified copy received in evidence was that it is irrelevant and immaterial. The paper received may be subject to objections not presented, although it is not vulnerable to the objection specified.

6. The objections to the cost bill have not yet been decided by the trial court, and consequently no question arising out of the cost bill is now presented, although the briefs discuss objections to certain items of the disbursements.

The judgment is reversed and the cause is remanded for a new trial. Reversed and Remanded. -

Mr. Chief Justice Moore, Mr. Justice Eakin and Mr. Justice Bean concur.