McKeon v. Williams

• Decision Date: 19 December 1990
• Parties: Sally McKEON, Respondent, v. Homer G. WILLIAMS; Front and Taylor Investments, an Oregon partnership; and Charles G. Rolles, Appellants, and David G. Alderman, Defendant. 88-06-03272; CA A61358.
• Court: Oregon Court of Appeals

Page 198

799 P.2d 198

104 Or.App. 106

Sally McKEON, Respondent, v. Homer G. WILLIAMS; Front and Taylor Investments, an Oregon partnership; and Charles G. Rolles, Appellants and David G. Alderman, Defendant.

88-06-03272; CA A61358.

Court of Appeals of Oregon In Banc.

Argued and Submitted May 25, 1990.

Decided Oct. 17, 1990.

Reconsideration Denied Dec. 19, 1990.

Diane L. Wendlandt, Portland, argued the cause, for appellants. With her on the briefs, were Jacob Tanzer and Ball, Janik & Novack, Portland.

Monica M. O'Brien, Portland, argued the cause, for respondent. With her on the brief, was Gleason, Scarborough, McNeese, O'Brien & Barnes, P.C., Portland.

EDMONDS, Judge.

Defendants appeal from a judgment in favor of plaintiff for damages for breach of a lease. Defendants also assign error to the trial court's instruction regarding the measure of damages applicable to defendants' counterclaim for conversion. We affirm.

Plaintiff is the owner of a commercial building that was leased by defendants for a 20 year term. In February, 1988, the 13th year of the lease, defendants stopped paying monthly rent. At the same time, they began negotiating an assignment of the lease to First Western Resource Company. In addition, First Western offered to purchase defendants' restaurant equipment located in plaintiff's building. The proposal was forwarded to plaintiff in April, 1988.

In June, 1988, plaintiff informed defendants that no assignment of the lease would be considered until all past due rent was paid and filed a legal action seeking only payment of the back rent. In August, 1988, plaintiff informed defendants that, before an assignment of the lease could be considered, the rent would have to be brought current and defendants would need to provide plaintiff with financial information about the proposed assignee. Defendants failed to bring the rent current and did not provide plaintiff with the requested financial information. On August 31, 1988, plaintiff notified defendants that the lease was terminated.

Defendants began negotiating with CPG Enterprises and forwarded a proposed sublease to plaintiff in October, 1988. Thereafter, plaintiff and CPG began direct negotiations. Because defendants refused to give up possession of the building, plaintiff filed a separate FED action. On the day set for trial, defendants agreed to turn over possession of the premises as of November 30, 1988, and stipulated to a judgment of restitution requiring them to remove the restaurant equipment from the premises by December 31, 1988. Defendants did not remove the equipment by December 31, 1988, and subsequently requested permission to remove the equipment in early January, 1989. Plaintiff denied defendants' request and retained possession of the equipment. In June, 1989, she entered into a lease with CPG for the premises and defendants' equipment.

Also, in January, 1989, plaintiff amended her complaint that had sought only payment of back rent to allege termination of the lease and damages for future rent as well. Defendants counterclaimed for damages for breach of lease and for conversion of the restaurant equipment that plaintiff refused to allow defendants to remove from the building. A jury awarded damages to plaintiff on her breach of lease claim and to defendants on their conversion claim. Defendants contend that the trial court erred in directing a verdict for plaintiff on defendants' breach of lease counterclaim, as well as in improperly instructing the jury on the measure of damages for conversion.

In directing a verdict in favor of plaintiff on defendants' counterclaim for breach of lease, the trial court reasoned that defendants' failure to pay rent was a material breach as a matter of law. Defendants contend that the materiality of their breach was a jury question. Second, they argue that, even if their failure to pay rent was a material breach, plaintiff still had a duty to consent to an assignment to First Western Resource Company. Therefore, they argue that their counterclaim for plaintiff's alleged breach of the assignment provision of the lease should have been submitted to the jury.

Generally, whether a breach is material is a question of fact to be decided by the jury, unless the facts are undisputed; then it is a question of law for the court. De Vol v. Citizens' Bank, 113 Or. 595, 602, 233 P. 1008 (1925); McDuffy, Edwards & Assoc. v. Peripheral Systems, 93 Or.App. 226, 231, 762 P.2d 299 (1988). A breach is material if it goes to the very substance of the contract and defeats the object of the parties in entering into the contract. Bisio v. Madenwald, 33 Or.App. 325, 331, 576 P.2d 801, rev. den. 283 Or. 1 (1978). In determining whether a breach is material, these factors are to be considered: (1) the extent to which the injured party will obtain the substantial benefit which he reasonably could have anticipated; (2) the extent to which the injured party may be adequately compensated in damages for lack of performance; and (3) the wilful, negligent or innocent behavior of the party failing to perform. 33 Or.App. at 331, 576 P.2d 801.

We hold that, under the terms of the parties' lease, failure to pay rent could be nothing other than a material breach. Even though defendants had paid rent for a lengthy period and had attempted to find a suitable assignee of the lease, nonpayment of the rent substantially undermined the basis for the parties' lease agreement. See Goode v. Duke, 131 Or. 488, 500, 283 P. 34 (1929). ¹ The trial court was correct in directing a verdict for plaintiff on the issue.

The trial judge concluded that, because defendants had materially breached the lease when they failed to pay rent in February 1988, plaintiff had no further obligation under the lease. The trial court was wrong. Plaintiff did not terminate the lease until August 31, 1988. The June, 1988, action was for past due rent only. Between February and August 31, 1988, her obligations to defendants under the lease continued. See Hollin v. Libby, McNeill & Libby, 253 Or. 8, 452 P.2d 555 (1969); Krebs Hop Co. v. Livesley, 59 Or. 574, 114 P. 944, 118 P. 165 (1911).

However, the trial court's granting of plaintiff's motion for a directed verdict was not error for a different reason. See Bush v. Greyhound Lines, Inc., 295 Or. 619, 623, 669 P.2d 324 (1983). The lease agreement provided:

"11.01 No part of the leased property may be assigned, mortgaged or subleased without the prior written consent of Landlord. This provision shall apply to all transfers by operation of law and transfers to and by trustees in bankruptcy, receivers, administrators, executors and legatees. No consent in one instance shall prevent the provision from applying to a subsequent instance. The Landlord shall consent to a transaction covered by this provision when withholding such consent would be unreasonable in the circumstances." (Emphasis supplied.)

Under the facts of this case, plaintiff could not, under any theory, be deemed to be unreasonable in requiring information about the proposed assignee's financial responsibility before consenting to an assignment. Because defendants did not provide the requested information, plaintiff did not unreasonably refuse to consent to the assignment of the lease to First Western. ²

Finally, defendants contend that the trial court improperly instructed the jury that the measure of damages on their conversion claim was the value of the equipment after its removal from plaintiff's premises. The trial court instructed the jury:

"The measure of damages is the fair market value of the property after removal from plaintiff's premises. Fair market value is that amount of money that the property would bring in the open market if there was a willing seller and a willing buyer."

Defendants excepted, because the court did not instruct the jury that the measure of damages is "the fair market value of the property under the circumstances then and there existing." They argue that the court's instruction resulted in plaintiff's obtaining the equipment at a cost of $5,170, although it would have cost plaintiff much more to replace the equipment.

The general rule is that the market value of the goods at the time and place of the conversion is the proper measure of damages, and there is a split of authority as to whether the measure to be applied in a case like this is the market value of the property "in place" or in a "removed state." See Atlas Hotel Supply v. Baney, 273 Or. 731, 742, 543 P.2d 289 (1975). In Atlas, the defendant appealed from an award of damages by a court sitting without a jury. The Supreme Court disregarded the trial court's informal "memorandum opinion" in which it said that the "on the curb" measure of damages was "unfair," because the opinion had no legal efficacy. 273 Or. at 743 n. 4, 543 P.2d 289. It noted that an award of damages by a trial court sitting without a jury must be affirmed, if it is supported by any substantial evidence. Thus, it held that, because there was evidence to support the amount awarded on either "in place" or a "removed state" value, it was not necessary to decide which measure was correct.

In contrast, the error assigned in this case involves a jury instruction. We must decide whether "in place" or "removed state" value is the correct measure of damages. Defendants contend that Blake-McFall Co. v. Wilson, 98 Or. 626, 193 P. 902 (1921), controls. In that case, however, the plaintiff-tenant had a leasehold interest at the time of the conversion. The court specifically pointed out that "the tenant's possession [of the premises], actually...