Treadgold v. Willard

• Decision Date: 14 November 1916
• Citation: 160 P. 803,81 Or. 658
• Parties: TREADGOLD v. WILLARD.
• Court: Oregon Supreme Court

160 P. 803

81 Or. 658

TREADGOLD v. WILLARD.

Supreme Court of Oregon

November 14, 1916

Department 1.

Appeal from Circuit Court, Coos County; John S. Coke, Judge.

Action by G. T. Treadgold against Frank E. Willard. From a judgment for defendant, plaintiff appeals. Judgment reversed, and plaintiff awarded recovery of the sum demanded in the complaint.

This is an action to recover money. The complaint charges that at all the times stated therein the Walker Warehouse Company was and is a corporation; that it on May 6, 1913, entered into an agreement with the defendant whereby, in consideration of his promise to pay $10 a month in advance, the corporation permitted him to use and leased to him "certain valuable property," of which he then took possession, and continued to use for eight months; that on December 31, 1913 there was due under the agreement $70 from him to the corporation when it for a valuable consideration assigned the account to the plaintiff, who ever since has been the owner thereof; and that the defendant has refused to pay any part of the money so due. The amended answer admits the existence of the corporation, and that the defendant entered into a written contract with it, setting forth a copy thereof. It appears therefrom that the corporation leased to the defendant "from month to month all the wharfage rights belonging to the land lying in front of lot 2 in block 3 of Woodland addition to Bandon, Coos county, Or., at and for the agreed price of $10 per month, to be paid each month in advance." The writing also stipulated that either party might terminate the agreement by giving the other party 30 days' notice of an intention to do so. The remaining averments of the complaint are denied. For a further defense the answer sets forth a copy of the decree rendered by the circuit court of Coos county, Or., in the case of Chris Rasmussen against the Walker Warehouse Company, and alleges that by virtue of such determination the corporation had no wharfage or other rights which it undertook to lease, and by reason thereof could not enter into a valid agreement in respect thereto; that such wharfage rights were never owned by nor in possession of the corporation; that the defendant never became its tenant, and the pretended lease was without consideration; that about May 8, 1913, the defendant was advised of the decree by Rasmussen, who forbade him from interfering with such wharfage rights, and informed him that if he intermeddled therewith, a suit would be instituted against him, whereupon the defendant notified the corporation thereof. The reply denied the allegations of new matter in the answer, and averred that at the time the written agreement was signed the defendant knew the wharfage rights were in litigation, and on account thereof covenanted in the lease that upon its termination he would surrender possession of the premises peaceably; that an appeal from the decree specified was taken by the corporation, which thereupon entered into an agreement with Rasmussen whereby it was stipulated that pending a review of the cause the appellant's possession of the demised premises should not be disturbed; that upon an affirmance of the decree peaceable possession of the premises so leased was surrendered to that respondent, who then released the corporation from all liability, including the payment of wharfage; that Rasmussen never evicted Willard, nor did the latter attorn to him or any other person; and that in the eight months during which the defendant was in possession of the wharfage rights he recognized the corporation as his landlord, and expressly promised to pay to it the installments of rent as they severally matured. Based on these issues, the cause was tried, resulting in a verdict and judgment for the defendant and the plaintiff appeals.

G. T Treadgold, of Bandon (C. R. Barrow, of Coquille, Chatburn & Gardner, of Bandon, and Geo. C. Guthrie, of Chicago, Ill., on the brief), for appellant. W. C. Chase, of Coquille, for respondent.

MOORE C.J. (after stating the facts as above).

It is maintained that an error was committed in denying a request to direct a verdict for the plaintiff on the ground that no testimony had been received tending to support the averments of the answer. It is insisted by defendant's counsel, however, that since the complaint did not particularly describe the premises alleged to have been leased, the primary pleading did not state facts sufficient to constitute a cause of action, which defect was not waived or remedied by answering over after a demurrer to the complaint interposed on that ground was overruled, and, this being so, no error can be predicated upon any action of the court occurring at the trial.

Considering these questions in the inverse order, we find a text-writer saying:

"The declaration or complaint in an action for arrears of rent should allege a lease of described premises for a given term at a certain rent which defendant promised to pay and which has become due and remains unpaid." 24 Cyc. 1210.

See, also, Kiernan v. Terry, 26 Or. 494, 38 P. 671.

Pleadings are the formal written allegations by the parties of their respective demands and defenses, and are employed to state the ultimate facts which, when uncontroverted or when established by evidence at the trial of a cause, afford the foundation upon which a judgment or decree must necessarily rest. If a responsive pleading supplies material averments that have been omitted by an adverse party, so that the essential facts are thus set forth with sufficient particularity to uphold a judgment or decree based thereon, the question of who so makes the indispensable averment is unimportant, though the order of pleading may be irregular. Thus in 31 Cyc. 714, it is said:

"If a necessary allegation is omitted from a pleading, and the missing allegation is either alleged or admitted by the pleading of the adverse party the defect is cured."

So, too, in Dice v. McCauley, 25 Or. 471, 36 P. 530, in referring to an ambiguity in the delineation of a border to real property, set forth in an initiatory pleading, Mr. Justice Bean observes:

"The only uncertainty in the description contained in the complaint is the north boundary, and that is obviated by the answer."

To the effect that omitted averments may be supplied by the allegations of an adverse party, see, also, Turner v. Corbett, 9 Or. 79; Ferrera v. Parke, 19 Or. 141, 23 P. 883; State ex rel. v. Downing, 40 Or. 309, 58 P. 863, 66 P. 917; Catlin v. Jones, 48 Or. 158, 85 P. 515; Hornefius v. Wilkinson, 51 Or. 45, 93 P. 474.

The answer herein admits the defendant entered into an agreement with the Walker Warehouse Company, and sets forth a copy of the lease which gives a complete description of the demised premises. The defendant's pleading therefore remedies the defective averment of the complaint in respect to the lack of proper description of the land, and renders harmless the action of the court in overruling the demurrer.

Reviewing the refusal to direct a verdict for the plaintiff, the testimony shows that the Walker Warehouse Company, a corporation, claiming to be the owner of the tideland in front of and abutting upon the north end of the lot described in the lease, built on such shoals a wharf the outer or north line of which extended to navigable water in the Coquille river. Chris Rasmussen, the owner of such lot, commenced a suit against the corporation to quiet his title to the premises, alleging in his complaint that the tideland abutting thereon was a part thereof, and on November 16 1912, he secured a decree enjoining those defendants and all persons claiming or to claim by, through, or under them, or either of them, from driving any piles between the north line of such lot and the ship channel in that river, and also restraining any interference with that plaintiff's rights or privileges in or to the tideland, from which decree those defendants appealed. The corporation thereafter, and on May 6, 1913, leased to Willard the premises so described for the use of which he paid the first installment of rent in advance. The defendant made a small log raft, which, floating with the tides, rested against the north line of...