Webb v. Isensee

153 P. 800 | Or. | 1916

Mr. Justice Burnett

delivered the opinion of the court.

1. The contention centers around the proper legal construction to be given to the writing of January 31, 1912, signed by Isensee and the Webbs. It must be remembered that this document, although it appears to be attached to the original lease to the Thorens, was dated prior to the assignment of the latter by them to the Webbs. The plaintiff claims that the paper of January 31, 1912, constitutes one of the conditions of the original lease of which she is assignee, entitled to enforce the same as thus amended and so obtain a new lease. At the time of the execution of the instrument by Isensee and the .Webbs the latter were strangers to the lease, and hence any agreement they might make would necessarily depend upon a separate consideration of its own. The term did not expire until February 15,1914. The convention between the Webbs and Isensee, therefore, was not to be performed in any event within the year next ensuing. Our statute of frauds, as embodied in Section 808, L. O. L., declares thus:

“In the following cases the agreement is void unless the same or some note or memorandum thereof, expressing the consideration, be in writing and subscribed by the party to be charged, or by his lawfully authorized agent; evidence, therefore, of the agreement shall not be received other than the writing, or secondary evidence of its contents, in the cases prescribed by law: 1. An agreement that by its terms is not to be performed within a year from the making thereof. * * 6. An agreement for the leasing, for a longer period than one year, or for the sale of real property, or of any interest therein.”

2. No financial or other consideration is expressed in the instrument in question. There are no covenants on behalf of the Webbs to take a lease of the property, or to do or suffer anything whatever to correspond with the extension offered by Isensee. At the best the instrument is unilateral. It does not profess to bind the Webbs. Under the statute and within the reasoning of Corbitt v. Salem Gaslight Co., 6 Or. 405 (25 Am. Rep. 541, note), the instrument is void and of no force as a contract, because it is not to be performed within a year, and does not express any consideration.

3. It is urged that the covenant in the original lease to pay the rent therein reserved constituted a sufficient consideration to support this latter instrument. This is unsound for at least two reasons. As pointed out, the Webbs were strangers to the lease when they signed the document of January 31st. Further, even if they had then been the holders of the lease and subject to its covenants, they already would have been bound to pay the rent, and this stipulation would not be a consideration for any new agreement. It is very true that if an option to extend the term for five years had been incorporated in the original lease, the covenant to pay rent would have been a supporting consideration, and this is the precept laid down in such cases as House v. Jackson, 24 Or. 89 (32 Pac. 1027); Mitchell v. Taylor, 27 Or. 377 (41 Pac. 119); Clarno v. Grayson, 30 Or. 111 (46 Pac. 426); Olympia Bottling Works v. Olympia Brewing Co., 56 Or. 87 (107 Pac. 969); Kingsley v. Kressly, 60 Or. 167 (111 Pac. 385, 118 Pac. 678, Ann. Cas. 1913E, 746) — all cited by the plaintiff here. These precedents, however, are not applicable to the present juncture, because the two documents are separate transactions not between the same parties, and the Webbs, when they signed the later one, were strangers to the consideration supporting the first-one.

The principle is that when a consideration moving from one party is recited in an instrument as supporting covenants to be performed by the other party, it has spent its actuating force, and cannot be relied upon to support subsequent independent agreements even among the parties to the original contract. The doctrine is thus declared in 9 Cyc. 349:

“The promise of a person to carry out a subsisting contract with the promisee or the performance of such contractual duty is clearly'no consideration, as he is doing no more than he was already obliged to do, and hence has sustained no detriment nor has the other party to the contract obtained any benefit.”

4. Moreover, on the hypothesis that this was in its origin a binding agreement, yet, as a condition upon which the lease would be extended, it was specified that the "Webbs should be in possession of the premises at the expiration of the original term. When the time came, however, the condition was not fulfilled. They were not in possession. On the contrary, the property was occupied by another party, the plaintiff here. For all these reasons no right or privilege accrued to the plaintiff in this suit by virtue of the writing of January 31, 1912, executed by Isensee and the Webbs. It is not necessary to consider whether the defendant had a right to choose his tenant or to determine whether this was a personal covenant or one running with the land. As a matter of law, the plaintiff is clearly without right to a renewal of the lease.

5. It remains only to consider the status of the actions at law already mentioned. It is said in Section 526, L. O. L.:

“Whenever two or more actions or suits are pending at one time, between the same parties and in the same court, upon causes which might have been joined, the court may, upon the motion Of the defendant, order the same to be consolidated.”

As by the terms of the statute such procedure must be taken “upon the motion of the defendant,” it cannot be invoked by the court of its own motion.

6. Again, only causes which might have been joined are to be consolidated. It is impossible that the plaintiff could have joined her cause of suit for a renewal of lease with a chose in action existing in favor of the defendant for a recovery of unpaid rent or for the recovery, of the possession of the premises.

7. Especially is the order of the court erroneous as to the action pending before another tribunal.

The result is that the decree and orders of the Circuit Court are reversed, the plaintiff’s suit dismissed, and the actions at law restored to the situation in which they stood at the time the orders for consolidation were made. Reversed With Directions.

Mr. Chief Justice Moore, Mr. Justice Harris and Mr. Justice Bean concur. Mr. Justice Eakin did not sit.