Hahn v. Mackay

• Decision Date: 13 August 1912
• Citation: 126 P. 12,63 Or. 100
• Parties: HAHN v. MACKAY. [d]
• Court: Oregon Supreme Court

126 P. 12

63 Or. 100

HAHN v. MACKAY. ^[d]

Supreme Court of Oregon

August 13, 1912

Appeal from Circuit Court, Multnomah County; Henry E. McGinn, Judge.

Action by Jacob Hahn against Donald Mackay. Judgment for plaintiff and defendant appeals. Reversed.

Claiming to be a subtenant of premises of which the defendant is the owner in fee, and of which the rental value has greatly increased since the execution of the lease by the defendant to the original tenant, the plaintiff here says by his complaint that "said defendant, desiring to repossess himself of said property demised by the lease hereinbefore referred to, and desiring to oust this plaintiff and his subtenants from the possession of said property did, to wit on August 20, 1910, maliciously, wickedly, and unlawfully and without any right or authority therefor, by force enter into and upon the premises above described and demised to this plaintiff, and did tear down, destroy and demolish the entire building upon said premises, and did force and drive this plaintiff and his subtenants from said premises and the whole thereof, and did maliciously, unlawfully, forcibly, and without any right or authority therefor, repossess himself of said premises and the whole thereof on, to wit, August 20 1910, and did thereby dispossess this plaintiff and his subtenants from the property and the whole thereof, and has unlawfully, forcibly, and wrongfully retained the exclusive possession of said premises since said date, and has excluded this plaintiff and his tenants therefrom." It appears by the complaint that the rental due from the plaintiff was $250 per month, payable in advance, and that his lease expired February 1, 1911. He says he was engaged in the retail saloon business, and had on hand at the time of his eviction a stock of liquors, etc., valued at $1,100, which was a total loss to him as the result of defendant's wrongful acts. He avers also, that the reasonable profits of his business was $1,000 per month, and that by reason of being ousted from the premises by the defendant the plaintiff has been damaged in his business in the total sum of $5,333, in addition to which he claims exemplary damages in the sum of $3,000 and demands judgment against the defendant in the sum of $10,000, together with costs and disbursements. The defendant admits that he is the owner of the fee in the premises described, and that he leased them to the San Francisco Breweries, Limited, a corporation, for a period of five years from February 1, 1906, at a monthly rental of $250 in advance, but otherwise denies the entire complaint. Three affirmative defenses were interposed by the answer. By the first it is charged that, contrary to a covenant in its lease, the San Francisco Breweries, Limited, without any right or authority, and without the knowledge or consent of the defendant, assigned the lease to the Gambrinus Brewing Company, which coming to his knowledge for the first time on June 29, 1910, the defendant as of right re-entered and took possession of the premises as of his former estate; the same being the entry complained of by the plaintiff. The import of the second affirmative defense is that on May 2, 1910, the building on the premises being in a dangerous and unsafe condition and unfit for occupancy, and the defendant being desirous of constructing a new and safe building thereon, called upon the agent of the San Francisco Breweries, Limited, and obtained his consent to a cancellation of the original lease, and that thereupon, on the date of such consent and cancellation, the defendant re-entered the premises and took possession thereof. The essence of the third separate defense is that the city of Portland, by virtue of its police power, through its building inspector, examined the buildings on the premises, found them dangerous to persons and property, and notified the defendant to tear them down, in pursuance of which warning he entered upon the property and demolished the structures; these being the acts of which the plaintiff complains.

The new matter of the answer is materially traversed by the reply. Further replying, the plaintiff asserts in substance that he himself notified the defendant of having obtained a lease from the San Francisco Breweries, Limited, for the premises, and that even subsequent to June 29, 1910, when the defendant alleges he had first knowledge of the assignment, the defendant, with such knowledge, accepted from the plaintiff the rent reserved for the premises, and hence waived any right to re-enter for an alleged assignment of the lease without his consent. The plaintiff also charges that the action of the city was collusive at the corrupt and dishonest instance of the defendant, to enable him to get possession of the premises and relet them to another concern after having ousted the plaintiff.

A jury trial resulted in a verdict and judgment against the defendant, from which he appeals.

Thos. N. Strong, of Portland, for appellant.

Thos. O'Day, of Portland (O'Day & Haddock, of Portland, on the brief), for respondent.

BURNETT, J. (after stating the facts as above).

As a preliminary matter, it is necessary to dispose of the contention of the plaintiff that, the defendant having failed to have the exhibits in evidence properly identified and made part of the bill of exceptions, those documents are not before the court, and the bill itself should be stricken out. It is provided by section 171, L. O.L., that "no particular form of exception shall be required. The objection shall be stated with so much of the evidence or other matter as is necessary to explain it but no more." There is before us a paper setting out certain instructions asked for by the defendant and refused, and certain directions to the jury, given by the court, to which exception was taken by the defendant. The entire charge of the court is included therein. In relation to the instructions given, and to which the defendant objected, the paper referred to contains this statement: "There was, as will more fully appear in the evidence hereto attached and hereby made a part hereof, such evidence as the court referred to specifically in the above instructions, and also other evidence tending to the minimization of such damages." Similar statements as to the existence of evidence apropos of the questions involved in the requested charge are made in other parts of the paper. Attached to the bill of exceptions is a transcript of 236 pages of stenographer's report of the oral testimony, together with interpellations of counsel, the remarks of the court, and objections to the introduction or exclusion of testimony, and the like. The bill of exceptions proper closes with a certificate of this purport: "The evidence hereto attached and the exhibits hereby presented are hereby made a part hereof, and was and is all of the evidence presented on either side in the above-entitled cause and court. Wherefore, due notice of the bill of exceptions having been given, and counsel having been given an opportunity to be heard, and the court being at this time fully advised in regard thereto and finding the same to be correct: Now, therefore, the foregoing statement, and the evidence and exhibits hereto attached and made a part hereof, is hereby settled and allowed as a full, true, and correct bill of exceptions, and is made a part of the record of this cause. Dated June 15, 1911." Signed by the presiding judge. No exhibits are in fact physically attached to the bill of exceptions, or to the transcript of the testimony. Sundry papers accompany the record to this court; but they are not identified as having been used in the trial in the court below. For the purposes of this case, however, we do not deem these exhibits to be an essential part of the bill of exceptions.

It seems to be the contention of counsel for plaintiff that since the amendment of article 7 of the Constitution, adopted in November, 1910 (Laws 1911, p. 7), it is incumbent upon one appealing to necessarily...