Myer v. Roberts

• Decision Date: 14 May 1907
• Parties: MYER v. ROBERTS.
• Court: Oregon Supreme Court

89 P. 1051

50 Or. 81

MYER v. ROBERTS.

Supreme Court of Oregon

May 14, 1907

Appeal from Circuit Court, Marion County; Geo. H. Burnett, Judge.

Action by J.W. Myer against John J. Roberts. Judgment for defendant and plaintiff appeals. Affirmed.

See 78 P. 670.

This is an action in trover for the conversion by defendants of 21,913 pounds of hops alleged to belong to the plaintiff. The facts are these: On March 7, 1900, I.M. Simpson, being the owner of a hopyard in Polk county, leased it with the improvements, certain farming implements, and personal property to the defendants for the years 1900 to 1904 inclusive. On October 25, 1902, the defendants sublet the yard on shares to W.D. Huston for the years 1903 and 1904. On January 15, 1904, Huston attempted to assign and transfer his contract to the plaintiff. On January 23, 1904, the defendants, without notice of the assignment, entered into a new lease with Huston for the current year, taking from him a mortgage on his interest in the crop to secure a balance due for advances made the previous year and to be thereafter made. It was stipulated that in case of a violation of the terms of the lease defendants could re-enter, take possession of the property, complete the cultivation of the yard harvest, and sell the hops, paying over the surplus, if any to Huston. At the time of the attempted assignment by Huston to plaintiff there was no one in actual possession of the hopyard, and no dwelling thereon. A few days later the plaintiff went to examine the yard, but finding it too wet to work returned home. His brother, whom he had employed to cultivate the yard for him, returned about the 4th of February and remained a few days, but as the weather was unfavorable, but little, if any, work was done by him. On the 14th of March defendants, learning that the plaintiff claimed some right to the yard, sent one Vincent, an employé of theirs, to take possession and cultivate it for them. Vincent found no one in actual possession at the time, but some of plaintiff's employés arrived either that afternoon or the next morning, and they and Vincent were in joint occupancy until the latter part of March, when plaintiff commenced a suit to enjoin and restrain defendants from interfering with his possession. A preliminary injunction was issued and served, in obedience to which Vincent left the premises. On June 27, 1904, a decree was entered in such suit to the effect that the assignment from Huston to plaintiff was valid, and entitled him to possession during the time specified therein, but that defendants had a lien on the crop to secure the payment of $625, by virtue of their contract with Huston. This decree was reversed in November, 1904, and the complaint dismissed, on the ground that the contract between Huston and the defendants was unassignable. Meyer v. Livesley, 45 Or. 487, 78 P. 670, 106 Am.St.Rep. 667. Pending the litigation, however, the plaintiff remained in possession, cultivated and harvested a crop from the yard--one-fourth of which he delivered to the defendants--and stored the remainder in a nearby warehouse, where it was afterwards taken by defendants and converted to their own use. The purpose of this action is to recover the value of the hops so converted. The court below directed a verdict for defendants, and the plaintiff appealed.

John H. & C.L. McNary, for appellant.

W.M. Kaiser and Wirt Minor, for respondent.

BEAN C.J. (after stating the facts).

The lease or agreement between the defendants and Huston for the possession and cultivation of the hopyard for the years 1903 and 1904 was a personal contract, and not assignable to a third person without consent of defendants. An attempt to make such an assignment would work a forfeiture of Huston's interest, and give the defendants an immediate right of re-entry. Meyer v. Livesley, supra; Randall v. Chubb, 46 Mich. 311, 9 N.W. 429, 41 Am.Rep. 165. th v. Reeder,

21 Or. 541, 28 P. 890, 15 L.R.A. 172. At that time the hop roots had sprouted and were growing, and upon re-entry by the defendants the title thereto vested in them. When the estate of a tenant or occupant of land is forfeited, or the tenancy terminated by some act of his, and the landlord or owner re-enters, the tenant or occupant is not entitled to the crops growing thereon, but they pass to the landlord with the title to the land. 8 Am. & Eng.Enc.Law, (2d Ed.) 319; Taylor, Land. & Ten. § 535; Samson v. Rose, 65 N.Y. 411. Samson v. Rose, supra, is much in point. In that case the plaintiff leased his farm to Tripp & Green for five years for an annual rent, payable in January of each year. There was a clause authorizing the re-entry of the lessor in case the rent was not so paid. Tripp & Green did not pay the rent due in January, 1870, and on March 20th thereafter the plaintiff brought an action in ejectment to recover possession of the premises, and in due time recovered judgment, and was put in possession. Pending the litigation Tripp & Green sublet the premises to the defendant, who raised a crop of grain from seed, sown after the commencement of ejectment proceedings which had been cut but not removed from the land at the...