179 P. 241 | Or. | 1919
Upon the trial of the cause there was testimony tending to show that the general manager Mr. Dundore, on behalf of plaintiff under the circumstances as alleged in defendant’s answer, agreed to reduce the rent as alleged. This was contradicted on the part of plaintiff by the testimony of Mr. Dundore, the general manager of plaintiff in Oregon. It was contended on behalf of plaintiff upon the trial that the general manager had no authority to make the alleged agreement and that such authority must be shown to be in writing, and further that evidence of an oral agreement to change the terms of the written lease was incompetent. This was evidently the view taken by the trial court in directing a verdict for plaintiff.
In McDaniels v. Harrington, 80 Or. 628 (157 Pac. 1068), it was said by Mr. Justice McBride, at page 631 of 80 Or. (1070 of 157 Pac.), that:
“In this state leases for a period of one year are not required to be in writing, and it would be an anomaly in a contract that to surrender a lease should require a greater degree of formality in its execution than that requisite to create it. ’ ’
In the present case the modification agreement only related to one year of the lease, and an entire new lease for such a period of time could have rested in parol and yet been valid and it therefore follows that an oral modification covering no longer a period of time than one year would be binding.
In Wilson v. People’s Gas Co., 75 Kan. 499 (89 Pac. 897), it was held that a written lease may be subsequently modified or changed with respect to the manner and terms of paying rent by an oral agreement, at page 898 of 75 Kan. (898 of 89 Pac.), the court said:
“The last contention is that a subsequent parol agreement by which the obligations of the lessee are changed cannot be proven. The authorities are otherwise. ’ ’
It has been held evidence is admissible to show that the time of performance of a written contract has been enlarged by a subsequent oral agreement: Scott v.
Section 808, subdivision 7, L. O. L., providing that an agent’s authority to make an agreement concerning real property must be in writing, excludes a lease for one year or less in duration and an agreement reducing the rate of rental of a sublease for one year need not be in writing: Section 808, subds. 6 and 7, L. O. L.; Section 804, L. O. L.; Edwards v. Perkins, 7 Or. 149; Hughes v. Lansing, 34 Or. 118 (55 Pac. 95, 75 Am. St. Rep. 574); Negley v. Jeffers, 28 Ohio St. 90; Westervelt v. People, 20 Wend. (N. Y.) 416; Buhl v. Kenyon, 11 Mich. 249 (83 Am. Dec. 738); South Baltimore Co. v. Muhlbach, 69 Md. 395 (16 Atl. 117, 1 L. R. A. 507).
The authority of Mr. Dundore the managing agent was indicated by his testimony introduced by the plaintiff, when he testified as follows:
“A. Yes, we decided about April or May that we wanted part of that space ourselves in moving our talking department from the basement upstairs, and I told them we would release them any time they wanted to go.”
The jury might reasonably infer that the manager having authority to release a party from his obligations under a lease, had authority to make an agreement adjusting the rent. It therefore appeared to be the theory of the plaintiff upon the trial of the cause that its manager had authority to negotiate in that respect. We fail to see that it would be entirely consistent for the plaintiff to introduce testimony to that
“The appointment or authority of an agent is a question of fact; what he may do by virtue thereof is a question of law. When the appointment and authority, real or apparent, are admitted, or are not in controversy, the court may declare whether they empower the agent to perform the particular act in question. Where, however, there is a dispute as to the appointment or the authority conferred, the fact of such appointment or authority must be found by the trier of fact. ’ ’
See, also, Calvert v. Idaho Stage Co., 25 Or. 412 (36 Pac. 24).
In West v. Washington Ry. Co., 49 Or. 436 (90 Pac. 666), where it was contended that McCabe, vice-president and general manager of defendant corporation, had no authority to execute a written lease, it was said at page 446 of 49 Or. (670 of 90 Pac.):
*361 “When McCabe testified that he was general manager, he thereby gave evidence that he was agent for the company in all his dealings. In effect he became, in his dealings with the public, the corporation itself.”
See, also, Dillard v. Olalla Mining Co., 52 Or. 132 (94 Pac. 966, 96 Pac. 678).
It is the position of plaintiff that Section 808, is applicable to this case. Under this section, no estate or interest in real property, other than a lease for a term not exceeding a period of one year, can be created otherwise than by a conveyance or other instrument in writing subscribed by a party or his lawful agent under written authority. Therefore, a lease for a term of one year can be created otherwise than by such an instrument in writing subscribed by the party; and a lease for a year can be created otherwise than by an instrument signed by the agent under written authority and such a lease can therefore be made by an agent without written authority. A lease for a term not exceeding one year is expressly excepted from the formalities required by the statute.
The judgment of the lower court is therefore reversed, and the cause remanded for a new trial.
Beversed and Bemanded.