Calcagno v. Holcomb

Decision Date23 September 1947
CourtOregon Supreme Court

2. Instrument executed by tenants agreeing that, in consideration of reduction of rent for farm by purchaser of farm, purchaser should be permitted to use the unplanted portions of the farm and the planted portions as soon as crops were removed, was not uncertain, and therefore it was court's duty, in action by tenant against purchaser for damages for destruction of part of crops, to construe instrument and instruct jury in regard to its legal effect, and giving of instruction which submitted construction of instrument to the jury was error. O.C.L.A. § 5-305.

Landlord and tenant — Lease — Expiration — Growing crops

3. Where terms of lease under which tenants entered into possession of farm fixed date of expiration of tenancy as February 29, 1944, any holding beyond that date by one of the tenants, without consent of purchaser of farm from the landlord, was wrongful, and on expiration of the lease on February 29, 1944, tenants were not entitled to the crop growing thereon. O.C.L.A. § 8-308.

Landlord and tenant — Damages — Not jury question

4. In action by tenant who held under farm lease expiring February 29, against purchaser of farm for damages for destruction of part of crops by purchaser, court erred in refusing to take from jury question of damage to parsnips on or after March 11.

Landlord and tenant — Damages — Jury question

5. In action by tenant who held under farm lease expiring February 29, against purchaser of farm for damages for destruction of part of crops by purchaser, court properly submitted to jury question of damage to some of tenant's potatoes, where there was a dispute whether purchaser damaged some of the potatoes prior to March 1.

Damages — Tortious act — Purchaser — Interest

6. Tenant's damages, if any, from alleged destruction of part of his crops by purchaser of leased premises, would be due to the tortious act of the purchaser, and therefore tenant would not be entitled to any interest thereon prior to judgment. O.C.L.A. § 66-101.

Trial — Exemplary damages — Not jury question — No malice

7. In action by tenant against purchaser of leased premises for damages for destruction of part of tenant's crops, court erred in failing to take from jury's consideration the question of exemplary damages, where there was no evidence that purchaser acted maliciously.

                  See: 8 A.L.R. 600; 15 Am. Jur. 250; 51 C.J.S., Landlord and
                tenant, § 348


Appeal from Circuit Court, Multnomah County.


John C. Veatch, of Portland, (Veatch & Bradshaw, of Portland, on brief), for appellant.

W.J. Prendergast, Jr., of Portland (with Leo Levenson, of Portland, on the brief), for respondent.



This is an action by plaintiff, Jack Calcagno, to recover from defendant, Blair Holcomb, damages for the destruction of a part of a crop of potatoes and parsnips grown on premises leased to plaintiff. From a judgment in favor of plaintiff, defendant has appealed.

The material facts in the case are substantially as follows: In 1943 Lillie Barker leased a certain 22-acre tract of land in Multnomah county, Oregon, to plaintiff and Elwood Larsen for the period of one year, beginning March 1, 1943, and ending February 29, 1944, at a rental of $400, payable $200 upon the execution of the lease and the balance on or before August 1, 1943. The lease was on a printed form. It contained, among other provisions, the following: "Any holding over by the lessee after the expiration of the term of this lease, shall be as a tenancy from month to month and not otherwise."

Defendant purchased the premises from Lillie Barker and her interest in the lease on or about July 17, 1943. When the lessees failed to pay the balance of the rental of $200, due August 1, 1943, or to answer his letters requesting payment, defendant sent them a telegram in response to which Calcagno and Larsen, on November 24, 1943, called at his home. After some discussion between them, Calcagno and Larsen paid defendant the sum of $100, and two documents were thereupon executed reading as follows:

                                                      "Nov. 4, 1943

"Rec'd of Jack Calcagno and E. Larsen ($100.00) one hundred and no/xx dollars in full payment of lease on 22 acres more or less in Section 25, Township 1, N.R. 2 East, tax Lot #1 — in the county of Multnomah, State of Oregon, which terminates Mar. 1, 1944.

                                            [Signed] Blair Holcomb"
                                                    "Nov. 24, 1943

"In consideration of reduction in rent from $200 to $100 on lease of 22 acres more or less in section 25, township 1 N.R. 2 East, — Tax Lot #1, we, the undersigned, hereby agree to permit the owner, Blair Holcomb, to use the lands for his own purposes, which are now not planted, and from which the present planted crops will be removed, and as soon as they are removed.

                                        [Signed] Elwood H. Larsen
                                        [Signed] Jack Calcagno"

These documents are in the defendant's handwriting and were executed on November 24, 1943. They are designated in the record as exhibits 2 and 3 respectively. The figure "2" was inadvertently omitted in the date on exhibit 2. Some time prior to March 1, 1944, Elwood H. Larsen assigned his interest in the lease to plaintiff.

After defendant acquired title to this 22-acre tract and prior to November 24, 1943, he entered upon and plowed or disked approximately six acres thereof which had not been cultivated by the lessees. It is plaintiff's contention that the only consideration for the reduction in the last installment of rental from $200 to $100, evidenced by exhibits 2 and 3, was the use by defendant of the six acres above mentioned, whereas defendant asserts that the consideration for this reduction was not limited to his use of the six acres but included, in addition thereto, the right granted to him by the lessees to enter upon and use all that portion of the 22-acre tract which was not planted on November 24, 1943, and the remainder of the tract as the planted crops thereon were removed.

Plaintiff testified that the defendant, on February 25, 1944, destroyed 8 rows of potatoes by disking or plowing the ground where they were planted. He said nothing about it until March 11, 1944, "because I figured it was a small loss; he [defendant] probably made a mistake, didn't know what he was doing." Defendant denied that any of the ground on which plaintiff's potatoes were planted was plowed or disked until after March 10th.

On Saturday, March 11, the defendant's farm-hand started to disk the ground where plaintiff's parsnips were planted when he was stopped by plaintiff. That evening plaintiff called at defendant's home and insisted that the lease did not expire until March 31, 1944, and that he had until that time to remove his crop. After they had argued about the matter for a few minutes defendant procured his copy of the lease and called plaintiff's attention to the fact that it expired on February 29th. The conference ended by defendant giving plaintiff 24 hours, or until Monday morning, in which to remove his crop. On Monday morning defendant proceeded to disk or plow up all the remaining parsnips except nine rows, which were later removed by plaintiff.

Plaintiff testified that the parsnips were ready for harvesting about the first of January, but that he did not have the time or the help, with his other work, to remove all the parsnips on this 22-acre tract by the first of March, 1944. We now quote from his testimony:

"Q. Well, Dr. Holcomb [defendant] didn't prevent you from taking them off, did he?

"A. No.

"Q. Did he have anything to do with the failure to take your crop off of there before the 1st of March?

"A. No.

"Q. Didn't interfere with you in any way?

"A. No.

"Q. You knew when your lease expired?

"A. Yes.

"Q. Why didn't you get your crops off?

"A. I told you I was doing all my best I could taking them off.

"Q. What?

"A. I was doing all I could to take them off and I just didn't get to them, is all.

"Q. Well, did you request Dr. Holcomb to allow you to stay on there any longer?

"A. No.

"Q. You never made any request of him?

"A. No.

* * * * *

"Q. Now did you pay any rental on this property on the 1st of March?

"A. On the 1st of March?

"Q. Yes.

"A. The rental was all paid.

"Q. Did you pay any rent for the use of the property after the 1st day of March of 1944?

"A. No.

"Q. Did you offer to pay any rent?

"A. No.

"Q. And Dr. Holcomb never told you that you could stay on there after the 1st of March, did he?

"A. No."

The plaintiff further testified that he did not remember signing exhibit 3.

Defendant's first assignment of error is based upon the refusal of the court to instruct the jury that the damage to the crop of parsnips "was occasioned subsequent to the first day of March, 1944, and subsequent to the time that plaintiff had any legal right to said" crop, and that therefore plaintiff was not entitled to any damage for loss of any parsnips "occasioned by the defendant's plowing the premises described in this lease."

We shall consider in connection with the foregoing assignment of error defendant's assignment of error No. 3, which is based upon the giving by the court of the following...

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