Meagher v. Eilers Music House

• Decision Date: 17 April 1917
• Parties: MEAGHER v. EILERS MUSIC HOUSE.
• Court: Oregon Supreme Court

164 P. 373

84 Or. 33

MEAGHER v. EILERS MUSIC HOUSE.

Supreme Court of Oregon

April 17, 1917

Department 1.

Appeal from Circuit Court, Multnomah County; C. U. Gantenbein Judge.

Action by D. V. Meagher against the Eilers Music House. From judgment for defendant, plaintiff appeals. Affirmed.

This is an action to recover part of a deposit given by a lessee to a lessor as security for the payment of rent. The Eilers Music House, a corporation, leased two rooms in the Eilers Building, in the city of Portland, to D. V. Meagher for a term commencing on July 1, 1912, and ending August 31, 1916 for $13,750, payable "in monthly payments of $275 each in advance, on the 1st day of each and every month" during the term. At the time of entering into the agreement of lease with the Eilers Music House the lessee deposited $550 with the lessor with the understanding that, if Meagher performed all his agreements, then the deposit "shall be applied to cover the rent" for the last two months of the term, but, if Meagher failed to keep his promises or failed promptly to pay the rent, "then the said sum of $550 shall be retained by the lessor as liquidated damages for such breach or failure to pay rent." Meagher paid the rent to and including the month of September, 1913, but made no more payments.

After reciting the execution of the lease, the deposit of $550 as security for the payment of the rent, payment of the rent until and including September, 1913, and default in payment for the month of October, the complaint alleges that the lessor "on the 7th day of October, 1913, elected to and did declare the said lease forfeited and rented the same to one R. E. Farrell under a verbal lease until November 7 1913, when the defendant entered into a written lease for the period of 4 years 11 months." Continuing, the complaint avers that, "after deducting the amount of rent due from October 1, 1913, to the time the defendant elected to declare said lease forfeited," the defendant has remaining in its hands and belonging to the plaintiff a balance of $485.83.

The answer denies that the lessor "forfeited" the lease and alleges that Meagher personally occupied the rooms until about August 1, 1913, when he left Portland "for parts unknown and left one Campbell occupying the premises." The defendant avers that subsequently on October 7, 1913, the plaintiff, acting through Campbell, abandoned the premises and "attempted to surrender the same to the defendant and left the keys for said premises in the place of business of the defendant herein in the city of Portland, without the knowledge or consent of the defendant; that the defendant upon the learning of the vacating and abandoning of said leased premises by the agent of the plaintiff, the said ______ Campbell, notified the plaintiff that said premises were still at his disposal, and the plaintiff thereupon refused to repossess or to take charge of said leased premises."

The defendant avers that, because the rent was not paid for the months of October and November, 1913, it applied the deposit in payment of the rent for those two months, and that the rooms were "left subject to the order and ready for the occupation of the plaintiff at any and all times had the plaintiff returned to Portland to occupy the same, either by himself or any representative until the 30th day of November, 1913."

The parties waived a jury, and the cause was tried by the court. After hearing the evidence the court found that Meagher abandoned the premises and attempted to surrender the rooms to the lessor by leaving the keys "in the place of business of the defendant" without the knowledge or consent of the lessor, who upon learning of the abandonment notified Meagher that the rooms were at his disposal, that on October 7, 1913, the defendant permitted R. E. Farrell to occupy part of one of the rooms under a verbal agreement to the effect that he could occupy the "premises temporarily and only until the said D. V. Meagher would return and take charge of said leased premises," and that on November 7, 1913, the defendant entered into a written lease with Farrell for one of the rooms for a period of five years, "said lease to go into effect from and after the 7th day of December, 1913, and which lease was not delivered and was not to be considered binding at any time should D. V. Meagher return and take possession and occupy said premises under his said lease." The court also found that the "leased premises were left subject to the order and ready for the occupation of the said D. V. Meagher at any and all times had he returned to Portland to occupy the same either by himself or any representative until after the end of November, 1913, and the said D. V. Meagher was not ejected from said premises, and the defendant did not elect to and did not declare said lease forfeited for nonpayment of rent or otherwise until after the end of the month of November, 1913, and the defendant did not collect any money or rent from the said Farrell or from any other person for said premises for the said months of October and November or either of them excepting as the defendant received the rent for said premises during the said two months by charging the same against the said deposit of $550 upon failure of the said D. V. Meagher to pay the rent for said two months or either of them."

The trial court ruled that, on the facts found by him, the plaintiff was not entitled to recover, and consequently a judgment was entered for the defendant,...