Dechenbach v. Rima

• Decision Date: 28 November 1904
• Citation: 45 Or. 500,78 P. 666
• Parties: DECHENBACH v. RIMA. [*]
• Court: Oregon Supreme Court

78 P. 666

45 Or. 500

DECHENBACH v. RIMA. ^[*]

Supreme Court of Oregon

November 28, 1904

Appeal from Circuit Court, Multnomah County; M.C. George, Judge.

Action by J. Dechenbach against D.C. Rima. A justice's judgment in favor of plaintiff was reversed on appeal to the circuit court, and plaintiff appeals. Reversed.

See 77 P. 391.

Wirt Minor, for appellants.

Edward Mendenhall, for respondent.

BEAN J.

This was an action of forcible entry and detainer. The plaintiff had judgment in the justice's court, but upon an appeal defendant prevailed in a trial in the circuit court. The plaintiff is the owner of certain premises in Portland, known as No. 400 East Morrison street. In June, 1903 one Lake was in possession thereof under an oral agreement as tenant from month to month, paying his rent in advance. Lake had paid his rent to July 1, 1903, and on the 11th day of June he hold his business to the defendant, Rima, who immediately took possession. On June 25th, and before the expiration of the month for which Lake had paid the rent, the plaintiff served notice to quit upon Rima and Lake, but Rima refused to vacate, and thereupon this proceeding was commenced. The complaint is in the usual form in actions of this kind. The answer admits the plaintiff's ownership of the property in question, but denies his right to the possession, or that defendant's holding is unlawful. For a further and separate defense it is averred that in June 1903, Lake desired to sell his furniture, fixtures, stock of goods, and good will to the defendant for $2,500--being $1,500 more than the property was reasonably worth, unless the buyer could secure a lease of the premises from the plaintiff from July 1, 1903, to January 1, 1906, at a monthly rental of $115; that defendant was unwilling to make the purchase and pay more than $1,000 for the business unless he could obtain such lease; that plaintiff, knowing such facts in order to induce him to buy the property and business for $2,500, to expend $50 in improvements, and to occupy the premises from July 1, 1903, until January 1, 1906, at a monthly rental of $115, "then and there willfully represented to and promised defendant that if he would purchase said property and business so offered for sale from said Lake for $2,500, and make said expenditure of $50, and enter into possession of said premises thereunder, to occupy the same from July 1, 1903, until January 1, 1906, the plaintiff would, upon such purchase and expenditure being made, make him a lease for said term at said rental; that relying upon said representations and promise of plaintiff, and not otherwise, this defendant was induced to and did purchase said property and business from said Lake, and paid him therefor $2,500, and entered into and upon and occupied said premises and expended said $50 on improvements and agreed to accept said lease"; that plaintiff has refused, and now refuses, to make the lease, although defendant has duly performed all the requirements on his part, and is ready, able, and willing to comply with the terms of the contract by the payment of the monthly rental during the term from July 1, 1903, to January 1, 1906; that by reason of these facts plaintiff is estopped to allege that defendant unlawfully occupies the premises, or any part thereof, by force.

There are many assignments of error, but all involve substantially the contention that the facts stated in the answer do not constitute an estoppel. That the alleged promise or agreement of the plaintiff to lease defendant the premises in controversy from July 1, 1903, to January 1, 1906, is void under the statute of frauds is not questioned. B. & C.Comp. § 797; Pulse v. Hamer, 8 Or. 251; White v Holland, 17 Or. 4, 3 P. 573; Rosenblat v. Perkins, 18 Or. 159, 22 P. 598, 6 L.R.A. 257. It is insisted, however, that under the facts alleged in the answer plaintiff is estopped by his conduct to deny the validity of such contract, or that defendant's possession of the premises is wrongful or unlawful. To this position there is a complete and obvious answer. Estoppel in pais arises from misrepresentation or concealment of a material fact, and rests on the ground that it would be a fraud in a party to assert what his previous conduct has denied when others have acted on the faith of that denial. Such an estoppel can rarely arise unless it has reference to a present or past state of things, or relates to an intended abandonment of an existing right; and it has no application to a mere breach of a promise or covenant relating to the future. 2 Bigelow, Estoppel (5th Ed.) p. 574; 2 Herman, Estoppel, § 730; 11 Am. & Eng.Enc.Law (2d Ed.) 424, 425. "If the...