Ingerslev v. Goodman

• Decision Date: 17 November 1925
• Citation: 116 Or. 210,240 P. 877
• Parties: INGERSLEV v. GOODMAN ET UX.
• Court: Oregon Supreme Court

240 P. 877

116 Or. 210

INGERSLEV v. GOODMAN ET UX.

Supreme Court of Oregon

November 17, 1925

Department 1.

Appeal from Circuit Court, Multnomah County; George Rossman, Judge.

Action by Helen Ingerslev against Charles W. Goodman and wife. Judgment for plaintiff, and defendants appeal. Affirmed.

G. E. Hamaker, of Portland (G. E. Hamaker and A. D Leedy, both of Portland, on the brief), for appellants.

J. F Boothe, of Portland, for respondent.

RAND J.

The defendants, who are husband and wife, were the owners of certain real property in the city of Portland upon which they had a three-story building that they desired to rent. On December 12, 1921, they entered into an oral contract with plaintiff to make some alterations in said building, and to lease the premises to her for a term of five years, and received from her a check for $100, for which they gave a receipt, reciting that it was "to apply on rental" of said property. Three days later the parties prepared and signed a written memorandum of agreement, by the terms of which defendants undertook to install a heating plant in said building, and to make certain other stipulated repairs alterations, and improvements therein, and to lease the same to plaintiff for a term of five years commencing on January 1, 1922, at an agreed rental of $125 per month payable in advance, and plaintiff undertook to lease the building for said term, to pay said rental, and also advance and pay $100 upon the expenses of making said repairs, and also to deposit with defendants the further sum of $375 to be retained by defendants as security for the payment of the rental for the last three months of said 5-year term. There was no stipulation in the writing as to the purpose for which the improvements of the building were to be made or as to the use which plaintiff was to make of it other than to use it for lawful purposes. Plaintiff paid $75 towards the repairs, and deposited said sum of $375 with defendants, and moved into the building with defendants' consent on or about January 1, 1922, and remained there until at or just before the commencement of the action. On or about February 21, 1922, defendants tendered to plaintiff a written lease which she refused to accept upon the ground that it did not conform to the written stipulations of the parties. Plaintiff thereupon commenced this action to recover damages for an alleged breach of the contract.

In addition to alleging substantially all of the foregoing facts, the complaint, in substance, alleges that the defendants contracted to remodel said building into an apartment house, and to obtain from the city of Portland a permit authorizing plaintiff to use said building as an apartment house, which defendants have wholly failed and neglected to do; that defendants have also failed and neglected to fully construct the building in accordance with said agreement The complaint also alleged "that the plaintiff has at all times been ready and is now ready, able, and willing to carry out all of the terms of her agreement," and "that the defendants have failed and neglected to give the plaintiff possession of said premises or to enter into a lease with the plaintiff according to the terms of their agreement, but retain the money paid by the plaintiff to the defendants as aforesaid and refuse to carry out the terms of their agreement." It also alleges that plaintiff expended $200 in moving her furniture into said building and $2,500 in fitting up and furnishing the same, and by reason thereof has been damaged in the sum of $1,000, and demanded judgment for $1,650.

The answer denied most of the allegations of the complaint, and sets forth a copy of the written agreement and of a lease dated February 21, 1922, which it is alleged was tendered to plaintiff. It also contains the following affirmative allegations:

"That on or about the 8th day of October, 1921, the defendants herein secured from the city of Portland, state of Oregon, by and through its bureau of buildings, a permit to make certain alterations and additions to said premises known and designated as No. 714 East Madison street in the city of Portland, Or., and soon thereafter the work and labor necessary to make said alterations and additions was commenced. * * *

"That at the time the plaintiff and the defendants herein made and entered into said written agreement as hereinbefore set forth and alleged the plaintiff had full knowledge of the said permit issued by the city of Portland Or., to the defendants herein as set forth and alleged in paragraph 2 of this the defendants' further and separate answer and defense to plaintiff's complaint and of the alterations and additions allowed to be made thereunder, and the alterations and additions set forth in said written agreement were and are alterations and additions not provided for in said permit, and the alterations and additions provided for in said permit and in said written agreement were and are the only alterations and additions to said premises to be made by the defendants herein and each, and every and all of said alterations and additions were fully made and completed in accordance with the terms of said permit and of

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