Hughes v. Bembry
| Decision Date | 21 July 1970 |
| Citation | 256 Or. 172,470 P.2d 151 |
| Parties | Matt S. HUGHES, Trustee of Notz Feed & Garden Store, a co-partnership composed of Wesley A. Notz and Janet Notz, Bankrupt, Appellant, v. Ernest E. BEMBRY and Florence A. Bembry, Respondents and Cross-Appellants. |
| Court | Oregon Supreme Court |
George M. Joseph, Portland, argued the cause for appellant. On the brief was Boyd J. Long, Portland.
Howard R. Hedrick, Portland, argued the cause and filed a brief for respondents and cross-appellants.
Before PERRY, C.J., * and McALLISTER, SLOAN, O'CONNELL, DENECKE and HOLMAN, JJ.
The plaintiff trustee in bankruptcy brought this law action for money claimed due because of the sale of a building by the bankrupts to the defendants. The court sitting without a jury found for the defendants and plaintiff appeals.
The plaintiff trustee's bankrupts are Mr. and Mrs. Notz. In 1963 Mr. Notz and his mother leased premises from the defendants for a term of 10 years with an option to renew for two additional five-year terms and with an option to purchase.
Apparently during the term of this 1963 lease, Mr. Notz constructed a building on the premises. Subsequently, Mr. Notz suggested to defendants that they buy a contiguous lot which he would also lease from them, buy his building, and enter into a new lease with Mr. Notz and his wife. After negotiations, a new lease was entered into. It provided for a term of seven years and 11 months with an option to renew and an option to purchase. The rent was fixed at $250 per month. The lease recited that the lessees had sold the building to the lessors, as evidenced by a bill of sale, for $12,000, and provided that this sum was to be paid by canceling a $2,000 debt of lessees to lessors, a payment of $5,000 in cash and the balance of $5,000 'to be paid by deducting from the monthly rental of $250.00 the sum of * * * ($150.00) for a period of * * * (33 1/3 (months)) from August 1, 1965.'
The lessees paid the first two months' rent, defaulted for subsequent months, and filed bankruptcy. After the filing of bankruptcy, the defendants leased the property to others; however, at the time of trial the property was unoccupied. All the rent due on the property from the bankrupts' default until the new lease was either paid or waived by the defendants.
The basic question is whether the trustee, as representative of the lessee-sellers, is entitled to collect the balance of the purchase price even though the lessee-sellers defaulted in the payment of rent, giving the lessor-buyers ground for declaring the lease in default and preventing the payment of the purchase price by the agreed reduced-rent method.
The trial court held that the part of the agreement providing for the payment of the balance of the purchase price by occupying the building for reduced rent was in essence a prepayment of rent and that prepaid rent cannot be recovered when the tenant terminates the lease by default. The court held further that in any event the lessees had abandoned the premises, thus terminating the lease and ending any obligation the defendants had thereunder.
In Sinclair v. Burke, 133 Or. 115, 118, 287 P. 686 (1930), we held that prepayments covering the last six months' rent under a lease could not be recovered by a tenant who had terminated his lease by failing to pay the rent due. We based our decision upon the ground that the prepaid rent, according to the terms of the lease, became due at the beginning of the lease term, and upon payment became the absolute property of the landlord and was not subject to divestment by a subsequent termination of the tenancy. Tiffany was in accord with this reasoning. 1 Tiffany, Landlord and Tenant, 1180 (1910).
Such reasoning is inapplicable to the present case as the $5,000 was an amount owed by the landlord to the tenants and not rent which had become due and payable prior to the tenants' default.
The trial court's finding of 'abandonment' by the tenants does not, in our opinion, solve the problem. 'Abandonment' is a termination of the lease by an intentional relinquishment of a known right. Moore v. United Elkhorn Mines, 64 Or. 342, 350, 127 P. 964, 130 P. 640 (1913). The Notzes did intend to terminate the tenancy; however, there is no evidence that they intended to give up their right to receive the balance of the purchase price.
Viewed strictly as a problem of contract law, the plaintiff is not entitled to recover because the default of the Notzes rendered it...
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Timberland Bancshares, Inc. v. Garrison (In re Garrison)
...v. Dept. of Rev., 294 Or. 139, 653 P.2d 1265 (1982); Riedel v. First Nat'l Bank, 287 Or. 285, 598 P.2d 302 (1979); Hughes v. Bembry, 256 Or. 172, 470 P.2d 151 (1970)). Attorney fee provisions in a contract apply only to the parties to the contract. See Haynes v. Adair Homes, Inc., 227 Or.Ap......
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Ives v. Lyon (In re Lyon)
...rule that attorney fees are not recoverable unless they are expressly authorized by statute or contract. See Hughes v. Bembry , 256 Or. 172, 177-78, 470 P.2d 151 (1970) ("narrow policy" on allowance of attorney fees); see also Riedel v. First Nat'l Bank of Oregon , 287 Or. 285, 290-91, 598 ......
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Timberland Bancshares, Inc. v. Garrison (In re Garrison)
...P.2d 723 (Or.1990)(citing Lewis v. Dept. of Rev., 653 P.2d 1265 (1982); Riedel v. First Nat'l Bank, 598 P.2d 302 (1979); Hughes v. Bembry, 470 P.2d 151 (1970)). Attorney fee provisions in a contract apply only to the parties to the contract. See Hayes v. Adair Homes, Inc., 206 P.3d 1062, 10......
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Riedel v. First Nat. Bank of Oregon
...to the awarding of attorney fees in actions at law. That policy is expressed as well as in any other place in Hughes v. Bembry, 256 Or. 172, 177-178, 470 P.2d 151, 154 (1970): "We have adopted a narrow policy on the allowance of attorney fees and held that they will not be allowed unless Ex......