Toomey v. Casey

• Decision Date: 30 June 1914
• Citation: 142 P. 621,72 Or. 290
• Parties: TOOMEY v. CASEY ET AL. [d]
• Court: Oregon Supreme Court

142 P. 621

72 Or. 290

TOOMEY v. CASEY ET AL. ^[d]

Supreme Court of Oregon

June 30, 1914

Department 2.

Appeal from Circuit Court, Multnomah County; Robert G. Morrow Judge.

Action by J. M. Toomey against J. D. Casey and another to recover rent. From a judgment for plaintiff, defendants appeal. Reversed and remanded.

On the 26th day of May, 1911, the plaintiff, J. M. Toomey, executed a lease to J. D. Casey and J. H. Hutchinson of an undivided one-half interest in a certain building and its contents situated on lots 6 and 7, in block 37, Couch's addition to the city of Portland, Or., for the term of six months from the 1st of June, 1911, "with the option and privilege upon the parties of the second part for forty-two months beginning with the expiration of the said six months' period," for a rental of $600 per month during the six months, and also for the period of "42 months, provided the said parties of the second part shall elect to exercise such option and privilege hereby granted, and keep, occupy and possesses the same during the said forty-two months." The plaintiff was the original lessee of the property and sold a one-half interest to the defendants. The plaintiff owned the remaining interest therein until May 18, 1912. Practically no question arises as to the rent during the first six months. The plaintiff alleges that the defendants exercised the option and privilege given them in the lease and renewed the same for the remaining period of 42 months. This is denied by the defendants, who by their answer plead that, prior to the expiration of the six months, they informed the plaintiff that they would not exercise the privilege or option given them in the lease to continue the same for any part of the 42 months; that the plaintiff requested the defendants to take charge of the whole of the property, make the necessary repairs, remodel the building, sublet the same to the best advantage, pay the rent of the lots to the original lessor, pay the taxes, interest, fixed charges, and generally manage the property for the best interests of the plaintiff and the defendants; that they did so, and expended $3,257.55 in remodeling the building, one-half of which is chargeable to the plaintiff. The reply put in issue the new matter of the complaint in so far as controverted in this case.

Leroy Lomax, of Portland, for appellants. B. G. Skulason, of Portland (Corliss & Skulason, of Portland, on the brief), for respondent.

BEAN J. (after stating the facts as above).

The defendants contend that in November, prior to the termination of the six months, they informed the plaintiff that they would not renew the lease, that the rents were insufficient, and that it was necessary to remodel the building. The sole question in dispute in the case is whether or not at the end of the six-month period mentioned in the lease the defendants did elect to continue the lease for the further period of 42 months. The plaintiff sought to show that the defendants did "keep, occupy, and possess" the premises after the expiration of that time. The controversy centers around this point. It was therefore incumbent upon the plaintiff to establish by his proof the fact that the defendants exercised the option given them in the six-month lease and held the property under its terms after the expiration of such time.

It is contended by the defendants that the court erred in permitting the plaintiff, as a witness in his own behalf, to testify over the objection and exception of counsel for the defendants in regard to the continuation of the lease as follows:

"* * * Q. Now was there anything said by you to them, or by them to you, about continuing in possession for the 42 months, at the end of the six-month period, at any time? * * * A. Their attorney came to me, gentlemen, and informed me they intended to exercise their option, and they would have to give instructions to another tenant who was-- Q. Who was their attorney? A. Mr. Lomax, I presume now, and was then. Q. The gentleman conducting the defense here? A. Yes, that is him

(indicating counsel for the appellants). I said, 'Very well, give me a public, proper notice, and I will be ready to vacate. He then-- Q. (interrupting) Just a moment, Mr. Toomey. Were you at that time renting some portion of the premises? A. I was renting a space at that time, from them, on the premises there, paying for it. Q. What do you say Mr. Lomax said about it? (Which was objected to by counsel for appellants as incompetent, irrelevant, and immaterial. Which objection was overruled by the court, and an exception taken and allowed.) A. Mr. Lomax came to me personally, as their representative, probably as their attorney, otherwise I don't know what he was, saying that he wanted the space I had; they wanted to make some alterations, and said, 'We shall have to have these spaces vacated right away.' I said, 'Put this notice in proper form.' I think the particular words I used were, 'Give me notice in a legal form,' which he did. He gave me that notice, and I vacated accordingly."

It is contended by the defendants that there was no evidence tending to show that Mr. Lomax, the agent and attorney referred to, was authorized to bind the defendants. It is in evidence on the part of the defendants in effect that a short time before the expiration of the six months the defendants came from Union county where they then resided, and had a consultation with the plaintiff in regard to the premises informing him that they could not pay $600 per month rental for his share; that negotiations were had for the leasing to the defendants of the one-half interest of plaintiff for $500 per month rental; that a lease to this effect was drafted, but not signed; that the lease provided...