Tarlow v. Arntson
| Decision Date | 19 January 1973 |
| Citation | 264 Or. 294,505 P.2d 338 |
| Parties | Benjamin D. TARLOW and Dena E. Tarlow, Appellants, v. Clifford L. ARNTSON et al., Respondents. |
| Court | Oregon Supreme Court |
Marvin S. W. Swire, Frank D. Riebe, and Rosenberg, Swire & Riebe, Portland, filed briefs for appellants.
James F. Spiekerman, and Souther, Spaulding, Kinsey, Williamson & Schwabe, Portland, filed a brief for respondents.
This is a suit for a declaratory judgment. Plaintiffs seek interpretation of a written agreement concerning the common use by plaintiffs and defendants of an elevator and also supplementary relief in the form of an injunction restraining defendants' use of the elevator. Plaintiffs appeal from a decree of the trial court declaring that defendants are entitled to the use of the elevator in common with plaintiffs as long as defendants' use does not unreasonably interfere with plaintiffs' use and as long as defendants pay their proportionate share of the costs of maintenance and repair of the elevator.
On April 14, 1927, plaintiffs' predecessors in interest deeded part of a parcel of ground to defendants' predecessors in interest, retaining a perpetual easement for the construction and maintenance of an elevator on a small portion of the granted premises adjoining the land which was retained. A multistory building was then, and is now, upon each of the two parcels (that parcel granted and that retained). The buildings are contiguous and each is served by a common elevator upon that part of the premises which was the subject of the easement. Two weeks later, on April 27, the same parties entered into a written agreement allowing defendants' initial predecessor the use of the elevator. The relevant parts of the agreement concerning the use of the elevator are as follows:
'THIS AGREEMENT MADE AND ENTERED INTO AT PORTLAND, OREGON, this 27th day of April, 1927, by and between Nassau Co., a corporation hereinafter referred to as the 'Company', (plaintiffs' predecessor in interest) and McEwen Ransom, hereinafter referred to as the 'Licensee' (defendants' predecessor in interest), WITNESSETH:
'* * *.
'It is the desire of the 'Licensee' to be permitted to use said elevator at such times and in such manner as may be convenient. The 'Company' is willing to grant to the 'Licensee' the right to use said elevator all in accordance with the conditions and stipulations set forth in this agreement.
'IT IS THEREFORE UNDERSTOOD AND AGREED BY AND BETWEEN THE PARTIES HERETO AS FOLLOWS:
'1. The 'Company' hereby grants to the 'Licensee' a license and authority to make use of the elevator situated on the above described easement property for the purpose of carrying freight to and from various portions of the building now owned by the 'Licensee', his successors and assigns, for the period the elevator is being used as such by the 'Company', its successors or assigns.
'2. It is understood that the use to which said elevator may be put by the 'Licensee' shall be subject to and subordinate to the superior right of the 'Company', its successors and assigns, to the use of said elevator for the purpose of carrying freight to and from various portions of its buildings and the use to which the 'Licensee' may put said elevator and the times at which he may use said elevator shall not interfere with the use thereof by the 'Company', its successors and assigns.
'3. It is understood and agreed that as a rental for the use of said elevator the 'Licensee' shall pay and hereby agrees to pay to the 'Company', its successors and assigns, the proportionate costs of maintenance and operation of said elevator, including the cost of replacements of all worn out machinery and apparatus and equipment and the costs for coverage of indemnity insurance the proportion to be paid by the 'Licensee' shall be such a sum as corresponds to the proportion of use made of said elevator by said 'Licensee'.
'4. It is understood by the parties hereto that the cost of the operation of said elevator is not now accurately ascertainable and that the proportionate amount to be charged to the 'Licensee' cannot now be determined, but that the method of determining said amount to be paid by the 'Licensee' to the 'Company' shall be determined from time to time by the parties hereto, and the 'Licensee' agrees to pay said proportion.
'5. All of such replacements as shall be reasonably necessary for the adequate and safe operation of said machinery, apparatus and equipment shall be made by the 'Company' and the cost of said maintenance and operation in the first place shall be paid by the 'Company' and the 'Licensee' shall pay its proportion thereof to the 'Company' upon rendition of bills therefor.
'6. In the event that the 'Licensee' fails to pay said proportion of the cost of operation, the right to use said elevator shall automatically terminate, as if this agreement had not been made.
'* * *.'
Prior to the commencement of this proceeding, plaintiffs gave notice to defendants that plaintiffs were terminating defendants' right to use the elevator.
Plaintiffs contend the language of the agreement is clear, unambiguous, and bestows only a license to use the elevator. Because 'license' is defined as a revocable privilege to use the land of another, plaintiffs reason that defendants' right to use the elevator ceased when plaintiffs gave defendants notice of termination. In addition, plaintiffs urge that the failure to use the words 'successors and assigns' following 'Licensee' indicates that defendants' original predecessor in interest had a right which was personal to him and nontransferable. It is further urged that because the agreement calls for the payment of 'rental' by the licensee and 'rent' is defined as the payment for the...
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Health Net, Inc. v. Dep't of Revenue
...law, a lengthy course of performance under a contract can be used to discern the intention of the parties. In Tarlow v. Arntson , 264 Or. 294, 300-01, 505 P.2d 338 (1973), for example, this court considered an unclear 1927 agreement concerning the use of an elevator to determine whether tha......
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...intended under the contract often is discernible by their conduct in carrying out the terms of the contract. See Tarlow v. Arntson, 264 Or. 294, 300, 505 P.2d 338 (1973). Wilson testified that Kirk asked him to investigate and told him who to contact. Wilson also testified that he kept Kirk......
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Roberts v. Heating Specialist Inc.
...See Yogman, 325 Or. at 364 (the parties' "practical construction of an agreement may hint at their intention" (citing Tarlow v. Arntson, 264 Or. 294, 300 (1973)). In the absence of any such direct or circumstantial evidence, or if the contract remains ambiguous after considering any such ev......