Holman v. De Lin-River-Finley Co.

• Citation: 30 Or. 428,47 P. 708
• Parties: HOLMAN v. DE LIN-RIVER-FINLEY CO. et al.
• Decision Date: 18 January 1897
• Court: Oregon Supreme Court

47 P. 708

30 Or. 428

HOLMAN v. DE LIN-RIVER-FINLEY CO. et al.

Supreme Court of Oregon

January 18, 1897

Appeal from circuit court, Multnomah county; E.D. Shattuck, Judge.

Action by Edward Holman against the De Lin-River-Finley Company and others. There was a judgment for plaintiff, and defendants appeal. Reversed.

The basis of plaintiff's action is a claim or demand for rent for use and occupation of certain premises, situate in the city of Portland, from October 1, 1893, to January 4, 1895 at a monthly rental of $200, payable in advance, alleged to have been assigned to him by T.L. Ray, R.L. Ray, H. Ray Sarah Ray, J.D.W. Ray, and Mary Arbuckle, who were and are the owners of said premises, as joint tenants. To defeat the action, defendants answer that on September 25, 1889, the owners executed a lease of said premises to the plaintiff and the defendant De Lin, who were then partners as De Lin &amp Holman, for the term of five years, beginning with March 1 1890, at a monthly rental of $200, which the said De Lin & Holman undertook to pay on the 1st day of each and every month during the term; that about December 2, 1892, De Lin & Holman dissolved their co-partnership, and Holman assigned to De Lin his one-half interest in the business theretofore carried on by them as such partners, and the aforesaid lease, and that thereafter De Lin remained in the possession and occupancy of the premises under the lease, but did not undertake or assume, by the assignment, to pay the rent, nor did the lessors undertake to accept or receive De Lin as and for De Lin & Holman, but thereafter continued to collect from, and enforce the conditions of the lease against, both De Lin and Holman, as their tenants; that thereafter, about September 25, 1893, the De Lin-River-Finley Company, a corporation, succeeded to the business of De Lin, and thenceforth occupied the premises under De Lin, and as his tenant, and not otherwise; that about December 27, 1894, the lessors instituted an action in the circuit court of the state of Oregon for Multnomah county against the plaintiff and De Lin, upon the lease, to recover for rent then in default, aggregating $2,000, and that plaintiff thereupon paid and discharged his liability upon said lease, and by so doing relieved De Lin and every person whomsoever of liability for any rent due or to become due under the lease, but, notwithstanding, plaintiff undertook to obtain from the lessors a transfer of the lease, and the right to recover for rent reserved, but that the said lease and liability thereunder have been wholly surrendered, satisfied, and discharged. The lease referred to in the answer was in fact executed by T.L. Ray, alone. This the reply shows, and it is further alleged therein that defendants went into possession of the premises, and continued to occupy the same for the time set forth in the complaint, and to pay the owners thereof the rent for their use, and that such owners recognized and treated the defendants as their tenants during such time, and not the plaintiff. A motion was interposed by plaintiff to strike out all of the further and separate answer as sham and irrelevant, which was sustained; but it seems that a demurrer was subsequently filed in the same matter, heard and considered by the court, and overruled. At the trial, and after plaintiff had concluded the introduction of his evidence, the defendants moved for a nonsuit, and, after verdict, moved for judgment non obstante, both of which motions were overruled. The action of the court below in sustaining plaintiff's and overruling the defendants' said motions and in giving certain instructions duly excepted to, is assigned as error on the appeal.

The following facts may be regarded as having been proved at the time plaintiff rested his case in chief: That one B.B Arbuckle was the agent for the owners of the building was the agent for the owners of the building or premises, with authority to lease the same and collect the rents. That on the 25th day of September, 1889, Arbuckle, in the name of T.L. Ray, one of the joint owners, executed a lease, not under seal, to plaintiff and the defendant De Lin, partners in business, as undertakers, as De Lin & Holman, purporting to let to them the entire interest in said building or premises for a term of five years, beginning March 1, 1890, at a monthly rental of $200, payable in advance, which they undertook and agreed to pay. De Lin & Holman occupied the premises to November 28, 1892, when Holman went out. Thereafter De Lin, River, and Finley occupied them as co-partners until September, 1893, when they incorporated as the De Lin-River-Finley Company, which corporation continued in possession until January, 1895, when it ceased to do business and vacated the premises. In the meantime,--about July, 1894,--De Lin sold and transferred his stock or interest in the concern to the defendant Rieger. De Lin paid the rent for December, 1892, being the first coming due after Holman's retirement, which Arbuckle says was paid to him before he knew that Finley had become a member of the company. Thereafter all payments of rent for the company or corporation were made by Finley, except $100 by De Lin. The rent was paid promptly to and inclusive of the month of August, 1893, but thenceforth the company dropped behind, paying the last item in October, 1894, which paid the rent in full to April 1, 1894. On December 15, 1894, Arbuckle called upon Holman for payment of back rent then amounting to $1,800,--which Holman says was the first time he had been called upon since he left the place,--upon failing to pay which he was sued by T.L. Ray on the 26th; and in January, 1895, he paid the rent in full to the expiration of the term of the lease, amounting to $2,200, in consideration of which he took an assignment or release from all the joint owners of the premises, purporting to assign, set over, release, and quitclaim to him any claim that they, or either of them, jointly or severally, had against De Lin, River, Finley, or Rieger, or either of them, either in their individual ,co-partnership, or corporate capacity, for rent of said building, and also any claim for rent due or to become due under the De Lin & Holman lease, which is attached to, and made part of, the assignment.Arbuckle testified, in effect, that Finley always claimed to be trying to pay the rent, saying at one time that, if he could sell some property in California, he would straighten it up, and in May or June, 1894, he said that when Rieger got an interest in the company he expected to be able to pay in full, as he would bring money into the business. River and Finley objected to the receipts for rent being made to Holman & De Lin, and, at their suggestion, Arbuckle made them to "De Lin & Co." after March 3, 1893, but continued to demand the rent of De Lin & Co. under the lease. The lessors, at the time they assigned to Holman, had not canceled the lease, nor released De Lin and Holman, or either of them. It was a question with them who was to pay the rent. Finley requested Arbuckle not to say anything about it to Holman, that he would pay it, and asked for a reduction, which was refused for fear it might invalidate the lease. The purpose of the assignment was to transfer whatever claim the assignors had to Holman, whether under the lease or otherwise. They claimed that De Lin & Holman were held under the lease, and it was a question whether Finley and Rieger were or not, and, if they had any such claim against Finley & Co., they assigned it to Holman. W.C. Kolb testified that he heard a conversation between Finley and River, who claimed there was a clause in the lease prohibiting its assignment or transfer without the consent of the lessees. Finley said that they were not responsible, but that they would go along and do the best they could; that he thought they would be able to pay the rent and expected business to pick up; and that he did not want to move, as it would cost him $1,000. The witness corroborates Arbuckle touching what Finley said to him about the payment of rent, and the...