Hostetler v. Eccles

• Decision Date: 18 November 1924
• Citation: 230 P. 549,112 Or. 572
• Parties: HOSTETLER v. ECCLES.
• Court: Oregon Supreme Court

230 P. 549

112 Or. 572

HOSTETLER v. ECCLES.

Supreme Court of Oregon

November 18, 1924

Department 2.

Appeal from Circuit Court, Clackamas County; Robert Tucker, Judge.

Action by W. W. Hostetler against R. S. Eccles. Judgment for plaintiff, and defendant appeals. Affirmed.

This is an action for damages for the conversion of personal property belonging to the plaintiff, respondent here. It appears from the complaint that the respondent leased a certain farm from the Base Line Land Company, a corporation, under a written lease, and entered into the possession of the premises about the 24th day of April, 1915, and continued in possession until on or about the 24th of December, 1917. In January 1917, the Base Line Land Company sold the real property to the defendant, appellant here, R. S. Eccles, and at the same time assigned to Eccles the said lease. About the 28th of October, 1917, the defendant Eccles demanded possession of the premises not later than the 1st of November, 1917, and the plaintiff declined and refused to deliver the possession. Eccles then brought an action in the circuit court in forcible entry and detainer, in which he demanded the immediate possession of the property. An answer was filed by the defendant in that action, and a trial had, which resulted in a judgment in favor of Eccles, putting him in possession of the property, and for costs and disbursements. Eccles went into possession under his judgment December 24, 1917. Before defendant gave notice to plaintiff to surrender the property the plaintiff, following his usual custom as a farmer planted upon the premises 30 acres of seed wheat, 7 acres of seed oats, and sowed the meadow land with clover seed, and sowed land plaster as a part of the cultivation. After plaintiff had been evicted under the judgment in the forcible entry and detainer action, he demanded of Eccles permission to go on the land for the purpose of cultivating and harvesting the crops which had resulted from the seed planted prior to the time of the notice to quit. The defendant refused such permission. During the harvest season of 1918 the plaintiff made a demand upon Eccles to deliver the crops to him, which Eccles declined to do. Plaintiff alleged that he was the owner and entitled to the possession of all of the crops so grown on the land. He further alleged that the defendant himself, during the harvest season of 1918 harvested approximately 532 bushels of wheat, of the reasonable market value of $2.15 per bushel, making a total market value for the wheat of $1,123.80, 4.68 tons of oats, at the reasonable market value of $60 per ton, in the aggregate $270.80 for the oats, and 10 tons of clover hay, at the reasonable value of $25 per ton, making a total of $250 for the hay; that defendant, in addition, realized from the wheat and oats 19 1/2 tons of straw, at $10 a ton, a total of $195, making the total value of the crop $1,839.60. It is alleged that the reasonable value of the labor expended in harvesting the crops was the sum of $371.94, leaving $1,467.66 as the value of the property at the time of its harvesting by the defendant. It is further alleged that plaintiff made a demand upon the defendant for the sum realized out of the crops, which defendant refused to pay.

The lease, which is Exhibit A of the complaint, among other provisions, provided that if the property was sold by the landlord during the term of the lease and possession should be required and demanded, the lessee would quit and deliver up the premises on condition, amongst others:

"That if sale is made and possession required after June first and before November first of any year of the term of the lease, the lessee should be entitled to remain in possession until the November, first following, and to remove the crop. If lessee is allowed to remove the crop, no payment is to be made him for seed or labor."

There were other provisions in the lease concerning the sums of money to be paid by the landlord to the tenant, depending upon the time of the demand for the surrender, which provisions of the lease are not involved in this case.

To this complaint a demurrer was filed by the defendant on the ground, as stated, that the complaint does not state facts sufficient to constitute a cause of action. This demurrer was overruled, and the defendant filed an answer to the complaint, in which he admitted the lease; the possession under the lease of the defendant; the sale by the Base Line Land Company to Eccles of the farm, and the assignment made at the same time of the lease to Eccles; the notice to quit of the 28th of October, 1917; the demand of the plaintiff for the possession of the premises; the refusal of the defendant to deliver possession; and the proceedings pleaded in the forcible entry and detainer action. The answer denied the sowing of the crop by the plaintiff, as alleged; the allegation of a demand that the plaintiff be permitted to enter upon the premises for the purpose of cultivating and harvesting the crops; the demand alleged during the harvest season of 1918, and the refusal of said demand; denies the ownership in the plaintiff of the crop; and denies the allegations concerning the amount of wheat, hay, and straw harvested by the defendant.

For a second defense the defendant alleged his acquisition of the premises; the existence of the lease; the possession of the defendant under the lease; the notice in October, 1917; his tender of $200 in gold under the terms of the lease; and his demand that plaintiff vacate the premises not later than November, 1917. It is then alleged that the plaintiff did not vacate the premises, and that the defendant brought the action for forcible entry and detainer. the proceedings in that action are set out in the pleadings of both parties. It is then alleged, as a defense, that the plaintiff in that forcible entry and detainer action did not make any claim to the right of possession of the premises for the purpose of harvesting the crops, or claim any ownership or title in any of the property constituting the crops; nor did he claim that he was deprived of any property by the eviction judgment resulting from the forcible entry and detainer action, and that he made no claim that he was damaged in any respect. It is then alleged that the plaintiff should have set up these matters in his answer in the forcible entry and detainer action, and that, not having done so, he is estopped and barred from maintaining the present action.

Another defense is set up which has no relation to the controversy presented on this appeal.

The defendant here, as plaintiff in the forcible entry and detainer action, alleged his ownership of the farm and his right to the possession; the existence of the lease and the possession of the respondent here under that lease; that he had made a demand for the possession of the farm and tendered the $200 in gold required by the lease; and that defendant refused to deliver the possession and continued to hold the premises, with force. The prayer was that the court should find that the plaintiff was entitled to the possession and have execution of restitution, and for costs and disbursements. The defendant in that action, the respondent here, denied, in effect, that his possession was unlawful; admitted that he was in possession under the lease; admitted the demand upon him to vacate and his refusal to do so. The judgment in that case was that the there plaintiff was the owner of the farm, and that the defendant should vacate the same, with a judgment for costs and disbursements against him, and that execution should issue to put plaintiff in possession of the farm.

To this second defense pleaded in the present action the respondent filed a demurrer, on the ground that the said defense failed to state facts sufficient to constitute a defense, and this demurrer was sustained. A reply was then filed to the answer, and the cause went to trial. The jury, on the 21st day of April, 1922, returned a verdict in favor of the plaintiff for $1,467.66, and judgment was entered upon the said verdict for that sum, and for costs and disbursements. From that judgment the appellant appeals.

W. Lair Thompson, of Portland (with James P. Stapleton, of Portland, on the brief), for appellant.

W. W. Dugan, Jr., of Portland, for respondent.

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

The principal questions here arise upon the ruling of the court below overruling defendant's demurrer to the complaint and sustaining plaintiff's demurrer to the answer. Some other questions are presented in the brief, arising on the trial, which will be noted in the opinion.

At the outset we remark that the emblements involved here belonged to respondent up to the time this action was begun. Section 2546, Or. L., provides that--

"When the leasing or occupation is for the purpose of farming or agriculture, the tenant, or person in possession shall, after the termination of such lease or occupancy, have free access to the premises to cultivate and harvest, or gather any crop or produce of the soil planted or sown by him before the service of notice to quit."

This lease was before this court on a former appeal ( Hostetler v. Eccles, 98 Or. 355, 194 P. 166), where the lease and statute, supra, were construed. It was held that--

"* * * Where the termination of the lease depends upon an uncertain event, as, for instance, a demand made at the discretion of the landlord, the tenant would have free access to the premises to cultivate and harvest the crop sown by him before the service of the notice to quit. That is this plaintiff's remedy in case of a demand made between June 1st and November 1st following." Hostetler v. Eccles, supra, 360, 194 P. 168.

That has become the law...