Backus v. West

• Decision Date: 28 March 1922
• Citation: 104 Or. 129,205 P. 533
• Parties: BACKUS v. WEST ET UX. [a1]
• Court: Oregon Supreme Court

205 P. 533

104 Or. 129

BACKUS v. WEST ET UX. ^[a1]

Supreme Court of Oregon

March 28, 1922

Department 1.

Appeal from Circuit Court, Multnomah County; J. P. Kavanaugh, Judge.

Action by J. E. Backus against Burt West and wife. Judgment for plaintiff, and defendants appeal. Reversed and remanded.

C. L. Whealdon, of Portland (Ralph R. Duniway, of Portland, on the brief), for appellants.

Jay Bowerman, of Portland, for respondent.

BURNETT C.J.

This is an action for the conversion of personal property. The genesis of the transaction out of which this dispute arises was a lease dated June 30, 1916, from the defendants to the plaintiff and his brother, the latter of whom without dispute assigned his share of the lease to the plaintiff. The lease included about 852 acres of land in Columbia county, together with cattle, horses, hogs, and farming implements thereon the place being a wellstocked dairy farm.

Concerning the rent, the contract contained this provision:

"That the said parties of the second part will pay the parties of the first part, during the first year of said term, a monthly rental of three hundred dollars ($300.00) per month, payable in cash on or before the 10th day of each and every month, and the sum of three hundred thirty-five dollars ($335.00) per month for the remaining four years of said term, to be paid on or before the 10th day of each and every month as the same shall become due."

As to replacement of stock and the like, there was this stipulation:

"The parties of the second part agree as a part of the consideration of this lease to leave on the premises above described, upon the vacancy of the premises at the termination of this lease, substantially the same amount and kind of crops growing thereon as now received from the lessor, said crops consisting of forty acres of oats, five acres of wheat, forty acres of oats and vetch, thirty acres of corn, and two acres of potatoes, and of the personal property above described, the parties of the second part agree that upon the termination of this lease, they will surrender to the parties of the first part, the same number kind and quality of cattle, calves, horses, poultry, farming implements, etc., as those received from the lessors as above described, or in lieu thereof property of equal value, agreeable to and to the satisfaction of the parties of the first part."

The instrument concluded with this defeasance clause:

"It is mutually agreed that time is of the essence of this agreement, and that should default be made in any of the covenants or agreements herein contained on the part of the parties of the second part, or should default be made in the payment of each, either, or all of the monthly payments, as above specified, as and when the same shall become due and payable, it shall be lawful for the parties of the first part or their duly authorized agents to reenter the premises described, retake possession thereof, including the personal property described, and remove all persons from said premises and to terminate this lease."

The plaintiff claims that he was residing with his wife in the dwelling house on the premises, and that on or about November 16, 1916, the defendants broke into the building and "took from the possession of the plaintiff and into their own possession, and converted to their own use, the following described goods and chattels, then and there the personal property of this plaintiff and his wife." The complaint then describes under that count a lot of household furniture, wearing apparel, and household supplies. There are also involved the live stock and implements included in the lease, and the crops grown on the place and harvested during the 4 1/2 months the plaintiff was in possession. It is said further that the plaintiff's wife transferred to the plaintiff all her chose in action respecting the property and its conversion.

The complaint is traversed by the answer in toto except as to the statement that the plaintiff and his wife were living in the dwelling house on the premises about November 16, 1916. Affirmatively the defendants recite the giving of the lease and charge that the lessees violated the terms thereof in several particulars, among others that they did not pay the rent as required by the lease, setting out the facts as they claim; that thereupon the defendants re-entered the premises, took possession of them, and notified the plaintiff to remove his personal property therefrom; that he took away part and left the remainder, whereupon the defendants notified the plaintiff that unless he removed the said residue of his property from the premises the defendants would cause the same to be removed and stored at his expense and risk, in consequence of which, owing to the failure of the plaintiff to remove his goods, the defendants stored them in the nearest public warehouse, the same being in Portland, Or., and notified the plaintiff thereof; that thereafter he removed part or all of his property from the warehouse; and that the defendants have no charge or control over it.

Replying, the plaintiff admits the lease, but challenges the answer in important particulars, saying that on July 1, 1916, the plaintiff with his brother, cotenant, took possession of the property, and that thereafter, on November 8, 1916, the plaintiff sublet the premises and personal property until December 1, 1920, to one Nellie K. Smith, with the understanding and agreement, however, that the plaintiff was to remain and continue in charge thereof on a salary as the superintendent for said Nellie K. Smith, and that as such superintendent he continued in possession of the properties until November 16, 1916, when he was dispossessed as in the amended complaint alleged.

On the issues thus formed a trial was had and a verdict rendered against the defendants assessing damages in the sum of $5,500. The verdict reads thus:

"We, the jury impaneled and sworn to try the above-entitled cause, find our verdict for the plaintiff and against the defendants, and we assess the plaintiff's damages and find our verdict in his favor in the sum of $5,500, as follows:

Household goods, personal effects, and property of that kind

removed and stored in warehouse ................................... $3,100 00

Hay, grain, feed, ensilage, potatoes, and apples ..................... 2,000 00

Live stock ............................................................. 400 00

___________________________________________________________________ $5,500 00"

It appears from the evidence that considerable friction arose between the parties early in the tenancy, and that on November 16, while the plaintiff and his wife were absent from the premises the defendants re-entered, resumed possession, took the plaintiff's household furniture out of the house, in large part at least, storing it in the woodshed and on the porches of the house. When the plaintiff and his wife returned in the evening, they were forbidden by the defendants to enter. A few days later the plaintiff and his wife returned to the premises and demanded permission to go in and get some wearing apparel. The defendant Burt West said to them, according to the testimony of the plaintiff:

"You can't set foot on these premises or come on these premises without an officer of the law."

Meanwhile the defendants had posted on the gate at the entrance of the premises a trespass notice in this language:

"No trespassing by J. E. Backus, family, agent, or representative allowed on these premises. Violators will be prosecuted to the full extent of the law." (Signed by the defendants.)

Without further effort to gain possession of the property the plaintiff went away. A few days afterwards the defendant Burt West notified him to the effect that unless he came and took away his property it would be stored at the plaintiff's expense. As the plaintiff did not come for the property, the defendants had it removed and stored in a public warehouse in Portland; that being the nearest place of the kind. This action was begun for the conversion not only of the household goods, wearing apparel, and family supplies, but also of the personal property included in the lease, together with five head of cows which the plaintiff claims were his property.

It is important to examine the undisputed testimony as to the performance of the terms of the lease. It is averred in the reply that the plaintiff had sublet the premises to Nellie K. Smith, and the contract of leasing of date November 8, 1916, from the plaintiff to her, appears in the record, covering "all of the land and personal property leased by Burt West and Mrs. Burt (Hazel M.) West in a certain lease to J. E. Backus and W. E. Backus dated the 30th day of June, 1916," from November 1, 1916, to December 1, 1920. Nellie H. Smith covenanted with the plaintiff here to perform all of the conditions which he was bound to perform in the lease between himself and these defendants, and she also promised to pay the defendants the same rent specified in the original lease. Under these circumstances, on November 8, by a letter signed "Mrs. Frank L. Smith," she wrote to the defendants at Scappoose, Or., in this tenor:

"I beg to inform you that I have taken over for a term of years the lease of the real estate and personal stock which you made with Mr. J. E. Backus and Mr. W. E. Backus. I herewith hand you a check for $300 for rent from November 1st, 1916, to December 1st, 1916. Kindly send me a receipt for the rent."

The check mentioned was one of Frank L. Smith payable to the order of the defendants in the sum of $300, addressed to S M. Mann & Co., bankers. On November 9, 1916, the defendants wrote thus to Mrs. Frank L. Smith, inclosing the $300 check already mentioned:...