Meagher v. Eilers Music House, 161 P. 373

Meagher v. Eilers Music House

161 P. 373 | Or. | 1917

Mr. Justice Harris

delivered the opinion of the court.

Quoting from the printed brief filed by the plaintiff:

“So the only question we have to present to this court at this time is: Was the leasing of the building to Farrell an acceptance of the surrender of the lease by the tenant or was the building leased to Farrell for the benefit of the plaintiff as alleged in the defendant’s answer?”

1. The findings of the trial court are equivalent to a verdict and consequently upon appeal the evidence will not be examined except to ascertain whether any of it is competent to support the findings: Eugene v. Lowell, 72 Or. 237 (143 Pac. 903); Weigar v. Steen, 81 Or. 72, 74 (158 Pac. 280).

There was evidence relating to the facts found by the trial court and hence we shall make no further inquiry concerning the evidence.

In brief the facts as found by the court disclose a lease, a deposit to secure the payment of rent, a default in the payment of rent, an abandonment of the premises by the lessee and reletting by the lessor but “subject to the order and ready for the occupation” of Meagher at any and all times. The plaintiff contends that reletting one of the rooms to Farrell of it*38self terminated the lease to Meagher. The defendant argues that the reletting was for the benefit of Meagher and subject to his lease, and that therefore the first lease was not affected by the reletting.

The instant case does not present a situation where there was an agreement of the lessor and lessee manifesting an intention to cancel the lease, or where there was a surrender by the lessee and an express acceptance by the lessor, or where there was an express release by the lessor, or where the lessor has himself actually put the tenant out of possession by legal process or otherwise, or where the landlord has given notice of the termination of the lease; and consequently we must put aside most of the authorities relied upon by plaintiff, such as Carson v. Arvantes, 27 Colo. 77 (59 Pac. 737); Cunningham v. Stockon, 81 Kan. 780 (106 Pac. 1057, 19 Ann. Cas. 212); Sutton v. Goodman, 194 Mass. 389 (80 N. E. 608); Hall v. Middleby, 197 Mass. 485 (83 N. E. 1114); Hecklau v. Hauser, 71 N. J. Law, 478 (59 Atl. 18); Michaels v. Fishel, 169 N. Y. 381 (62 N. E. 425); Scott v. Montells, 109 N. Y. 1 (15 N. E. 729); Caesar v. Rubinson, 174 N. Y. 492 (67 N. E. 58).

2. Meagher abandoned the premises and attempted to surrender them to the lessor but the latter refused to accept the surrender, unless it can be said that the re-letting to Farrell of itself operated as an acceptance. In reletting to Farrell for October and November, the Eilers Music House did all that it could have done to manifest its purpose to continue the leasehold interest of Meagher for it let the room to Farrell subject to the lease of Meagher, and possession of the premises could have been had by the latter ‘ ‘ at any and all times had he returned to Portland.” The letting to Farrell did not operate to exclude Meagher, but on the *39contrary Meagher’s right was preserved, and until the end of November both the defendant and Farrell recognized that Meagher’s right was superior to any right granted to Farrell. "Upon the abandonment of the premises the lessor could have left the rooms vacant and, without attempting to relet them, it could have applied the deposit in payment of the rent for October and November. Reletting one of the rooms was for the benefit of Meagher since liability under the lease was reduced to whatever extent rentals were paid on the reletting. Some authorities declare that a reletting is of itself a termination of the lease while others hold to'the contrary. Some precedents declare that the right to relet is dependent upon the consent of the lessee, express or implied, and this line of precedents involves the element of prior notice to the lessee, but within the rule of this class of cases the lessor could not relet and at the same time preserve the first lease if the whereabouts of the original lessee were unknown ; and, moreover, many adjudications adhering to this doctrine strikingly illustrate the extremes to which courts have been pushed in order to hold that a re-letting was with the consent of the lessee. It is not necessary, however, to analyze the reasoning of the cases announcing the variant doctrines in the different jurisdictions, for a quarter of a century ago this court took its place with those tribunals which hold that a landlord may relet for the benefit of an original lessee who has abandoned the premises, and that the act of reletting does not of itself necessarily effect a termination of the lease. The Eilers Music House did not repossess itself of its former estate, but it did what it did for the benefit of the lessee and subject to his recognized, admitted and preserved right to the possession of the premises. If the landlord had done noth*40ing the lessee would nevertheless have been liable for the full rental even though the premises had remained vacant; and the lessee should not complain if the landlord did its best to minimize his liability. This conclusion is not only in conformity with Bowen v. Clarke, 22 Or. 566 (30 Pac. 430, 29 Am. St. Rep. 625), but it is also in complete harmony with many other well-considered adjudications: Respini v. Porta, 89 Cal. 464 (26 Pac. 967, 23 Am. St. Rep. 488); Humiston, Keeling & Co. v. Wheeler, 175 Ill. 514 (51 N. E. 893); Marshall v. John Grosse Clothing Co., 184 111. 421 (56 N. E. 807, 75 Am. St. Rep. 181); Auer v. Penn, 99 Pa. St. 370 (44 Am. Rep. 114). See, also, the exhaustive note to Higgins v. Street, as reported in 13 L. E. A. (N. S.) 398.

3. The Eilers Music House was not able to collect any money from Earrell; and according to the finding of the trial court the landlord did not collect rent from any person for the months of October and November except as rent was received by applying the deposit in payment of the rental; and hence the defendant is not chargeable with moneys that it did not receive and could not collect from Farrell. The judgment is affirmed. Aeeirmed.

Mr. Chiee Justice McBride, Mr. Justice Benson and Mr. Justice Burnett concur.