Tracy v. Thun

• Decision Date: 22 May 1928
• Citation: 267 P. 398,125 Or. 323
• Parties: TRACY v. THUN.
• Court: Oregon Supreme Court

267 P. 398

125 Or. 323

TRACY v. THUN.

Supreme Court of Oregon

May 22, 1928

Department 2.

Appeal from Circuit Court, Clackamas County; J. U. Campbell, Judge.

Action by George A. Tracy against Otto Thun. Judgment for plaintiff and defendant appeals. Affirmed.

J. H. Ganoe, of Portland (Ganoe & Ganoe, of Portland, on the brief), for appellant.

Wm. M Stone, of Oregon City, for respondent.

BROWN J.

This is an appeal from a judgment in favor of the plaintiff for $550 alleged to be due as rental for unimproved tillable farm lands. The plaintiff let to the defendant for farming purposes, for a period of four years, the tillable land situate on a 170-acre tract, for the agreed rental of $600 per year, $300 to be paid on or before May 1st, and $300 on or before November 1st, of each year. The lease by its terms terminated on October 1, 1927. The defendant cropped the farm lands and paid his rent for the years 1924 and 1925, but defaulted in 1926.

The cause was tried to the court without a jury. The court found as a fact that of the 1926 rental defendant had paid only $50 under the lease, which amount was paid on or before September 4, 1926; that he had harvested all of the crop raised on the farm during that year, and had removed it from the place, and left and vacated the premises. As a conclusion therefrom, the court found that the sum of $550 was due and owing to plaintiff for rent for the year 1926.

The defendant contends that he surrendered the premises to plaintiff's possession in September, 1926, and that such surrender and alleged acceptance thereof amounted to a remission of the claim for rent for the second half of the year.

It is well established that the surrender of a lease by the lessee and its acceptance by the lessor extinguishes any liability to pay rent accruing subsequent to such acceptance. Ladd v. Smith, 6 Or. 316; Meagher v Eilers Music House, 77 Or. 70, 150 P. 266; Alvord v. Banfield, 85 Or. 49, 166 P. 549; Willis v. Kronendonk, 58 Utah, 592, 200 P. 1025, 18 A. L. R. 947, and extensive note upon the subject of surrender and acceptance of term as affecting right to recover rent or to recover on obligation given for rent. See, also, 2 Underhill on Landlord and Tenant, § 730; 2 Tiffany, Landlord and Tenant, § 191.

However in the leading case of Willis v. Kronendonk, supra, a case relating to the mutual obligation of landlord and tenant as to payment of rent, it was held that the courts will take judicial notice that, in the case of farm lands used for agricultural purposes, there is a dormant and a growing season in each year. This is the generally accepted doctrine. Therefore, in determining the controversy in this case, the nature of the subject-matter of the lease must be considered. The record shows that there were no buildings on the premises; that the lands were of value to...