Bowen v. Clarke

• Decision Date: 21 June 1892
• Citation: 22 Or. 566,30 P. 430
• Parties: BOWEN v. CLARKE et al.
• Court: Oregon Supreme Court

30 P. 430

22 Or. 566

BOWEN v. CLARKE et al.

Supreme Court of Oregon

June 21, 1892

Appeal from circuit court, Baker county; MORTON D. CLIFFORD, Judge.

Action by J.P. Bowen against John G. Clarke, John A. and P. Basche to recover three months' rent due for premises leased to defendants. Judgment for defendants. Plaintiff appeals. Reversed.

The other facts fully appear in the following statement by STRAHAN, C.J.:

It appears from the complaint that on June 10, 1890, the defendants leased of the plaintiff a certain building situated in Baker City, Or., for the term of three years, for which they agreed to pay $100 per month, payable on the 1st day of each month during the continuance of the lease. That defendants entered into the possession of said premises, and continued to occupy the same under said lease, and paid the rent therefor, until the 31st day of January, 1891, at which time the defendants abandoned said premises, and thereafter refused to pay the rent agreed to be paid in said lease, or any part thereof. The action is for the recovery of the rent for the months of February, March, and April, 1891. The answer admits the leasing and the nonpayment of the rent, but alleges that on the 31st day of January, 1891, said lease was canceled and surrendered, and that on said day the plaintiff entered into and took the actual possession of said premises and received the keys thereof, by and through the mutual understanding and agreement of the respective parties thereto that said lease was canceled, surrendered, void, and of no effect; and that, in pursuance of said agreement, the plaintiff has been at all times since, and is now, in the actual and exclusive possession of said premises, and at all of said times has been offering the same to rent to other parties. The reply denied the new matter contained in the answer. The jury returned a verdict for the plaintiff in the sum of one dollar, upon which judgment was entered, and from which the plaintiff has brought this appeal. The questions argued here arise entirely on the exceptions taken to the instructions given upon the trial, which are stated at large in the opinion.

Williams & Smith, for appellant.

Hyde Johns & Olmsted, for respondents.

STRAHAN C.J., (after stating the facts.)

1. There was but one witness introduced upon the trial, and that was the plaintiff. The lease was also read. The court gave the jury the following instruction: "If you find from the evidence in this action that the defendants, or their agents, delivered the keys to plaintiff, and surrendered up the premises to the plaintiff with the understanding and agreement that the lease should become terminated, and the plaintiff took possession of the premises with that understanding and agreement, then I instruct you that you must find for the defendants. But you must find, gentlemen of the jury, from the evidence, that these keys were surrendered up by the defendants themselves, or by some one authorized by them to act as their agents." This instruction was excepted to, and presents the first question on this appeal. The appellant's point of exception is not that this instruction is not good law, but that it is wholly inapplicable to the facts appearing in evidence. The appellant concedes that, as an abstract proposition of law the instruction is sound, but his contention is that there was no evidence whatever before the jury upon which such instruction could be based. Upon the contrary, the only evidence before the jury upon the question of the intent with which the plaintiff received the keys is just the reverse of what is assumed by the instruction. The same is true as to the alleged understanding and agreement that the lease should become terminated, as well as the surrender of the premises to the plaintiff. The defendants removed from said premises without the plaintiff's knowledge or consent, and then sent him the keys by one Pringle, which the plaintiff received for the purpose of caring for the building, at the same time informing Pringle that he would hold the defendants for the rent, and the keys subject to their order. There was, therefore, no fact in evidence before the jury upon which this instruction could have been predicated. We have several times held that abstract propositions of law, however correct in themselves, are necessarily misleading and mischievous. They tend to draw the minds of the jurors away from the real facts in the case, to something which they assume to exist, but which cannot be found in the record. Morris v. Perkins, 6 Or. 351; Hayden v. Long, 8 Or. 245; Marx v. Schwartz, 14 Or. 177, 12 P. 253; Breon v. Henkle, 14 Or. 494, 13 P. 289; Glenn v. Savage, 14 Or. 567, 13 P. 442; Langford v. Jones, 18 Or. 308, 22 P. 1064; Woodward v. Navigation Co., 18 Or. 289, 22 P. 1076; Bailey v. Davis, 19 Or. 217, 23 P. 881; Rowland v. McCown, 20 Or. 538, 26 P. 853; Knahtla v. Railroad Co., 21 Or. 136, 27 P. 91.

2. The court also gave the jury the following instruction, to which an exception was duly taken: "If the plaintiff did take possession of said premises, and has tried to rent the same to other parties, I instruct you that this is evidence that tends to show that the lease was surrendered up and canceled by the consent of the parties thereto, but of itself is not sufficient to constitute a surrender." What the court meant by this instruction, when considered in the light of the evidence, is not quite apparent. It appeared upon the...