Buck v. Mueller

• Decision Date: 23 February 1956
• Citation: 293 P.2d 736,207 Or. 169
• Parties: Milton LeRoy BUCK, Appellant, v. Dora McLeod MUELLER, Respondent.
• Court: Oregon Supreme Court

Page 736

293 P.2d 736

207 Or. 169

Milton LeRoy BUCK, Appellant, v. Dora McLeod MUELLER, Respondent.

Supreme Court of Oregon, Department 1.

Argued and Submitted Feb. 9, 1956.

Decided Feb. 23, 1956.

E. R. Robnett, Portland, for appellant. With him on the briefs were Easley & Whipple, Portland.

George P. Winslow, Tillamook, for respondent. On the brief were Winslow & Winslow, Tillamook.

Before WARNER, C. J., and ROSSMAN, LATOURETTE, and PERRY, JJ.

PERRY, Justice.

The plaintiff commenced this action against the defendant to recover damages for breach of a covenant in an executed lease granting him an option to re-lease the property of the defendant.

The defendant demurred to the complaint on the ground that the complaint failed to state a cause of action. The demurrer was sustained by the trial court, and the plaintiff has appealed.

The plaintiff's complaint, insofar as it is pertinent to this opinion, alleges the following:

'V.

'On or about August 1, 1952, and more than 90 days prior to the expiration of said lease, plaintiff exercised his said option to re-lease said premises by notifying defendant in writing of his intention so to do, and offered and attempted to renegotiate the rental for said additional period in good faith, and at all times plaintiff performed all conditions, covenants, terms and provisions of said lease on his part to be performed.

'VI.

'From on or about August 1, 1952, until April 20, 1953, plaintiff made repeated offers, demands and attempts to renegotiate said rental in good faith for said additional period, but defendant, arbitrarily and capriciously and acting without good faith, refused, failed and neglected to renegotiate said rental, and on February 10, 1953, plaintiff tendered defendant the sum of $100. as rental for the period of March 13, 1953 to April 13, 1953, which said tneder was refused and returned by defendant, and plaintiff alleges that at the time he exercised his said option and at the expiration of said lease a reasonable rental for said premises according to the going rent and existing conditions at said times does not and did not exceed the sum of $100. per month.

'VII.

'Thereafter, and prior to the expiration of said lease, plaintiff offered to submit the determination of said rental for said additional period to arbitration, as provided in said lease, but defendant, arbitrarily and capriciously and acting without good faith, refused, failed and neglected to submit the same to arbitration, and on or about April 10, 1953, in the Circuit Court of the State of Oregon for the County of Tillamook, defendant brought suit against plaintiff to recover possession of said premises and to recover damages against plaintiff for his alleged wrongful possession thereof from March 13, 1953, at the rate of $200.00 per month, thereby ousting plaintiff and forcing him to vacate said premises and to surrender possession thereof to defendant on or about April 20, 1953.

'VIII.

'Said acts and omissions of defendant in refusing to renegotiate said rental, in refusing to submit the same to arbitration and in ousting plaintiff from possession of said premises, constitute a breach of said lease, to plaintiff's general damage in the sum of $2500.00.'

The lease set out in the complaint provides, among other matters, the following:

'Should first party desire to re-rent the property herein described at the expiration of this lease, then second parties shall have the first privilege of rerenting the same upon terms and conditions then specified by first party.

* * *

* * *

'Second parties shall have an exclusive option to re-lease the property herein mentioned and described for another three year period. Should second parties exercise their option to re-lease said property for said additional three year period second parties shall give first party written notice of their...