West v. Backus

• Citation: 97 Or. 116,189 P. 645
• Parties: WEST ET AL. v. BACKUS ET AL. [a1]
• Decision Date: 27 April 1920
• Court: Supreme Court of Oregon

189 P. 645

97 Or. 116

WEST ET AL. v. BACKUS ET AL. ^[a1]

Supreme Court of Oregon

April 27, 1920

Department 1.

Appeal from Circuit Court, Columbia County; J. A. Eakin, Judge.

Action by Burt West and another against W. E. Backus and others. Nonsuit granted as to defendants J. E. Backus and Birdie O Backus and directed verdict for defendant Nellie K. Smith and plaintiffs appeal. Reversed and remanded.

This is an action in replevin. The plaintiffs and the defendants Backus entered into a written contract, on June 30, 1916 whereby plaintiffs leased to defendants their farm for a term of five years, delivering to the lessees certain live stock consisting of cows, horses, pigs, poultry, and a considerable supply of farming and dairying implements and equipment, and also left upon the premises and under the control of the lessees certain other personal property, which is enumerated in the complaint, which pleading alleges that the lessees violated the covenants of the lease in the following particulars: They failed to pay the October rent of $300 until after it was due, and have failed and refused to pay the rent for the month of November, which was payable on November 10; they failed and neglected to repair the fences thereby permitting the live stock to stray away and out of their proper inclosure; they failed to harvest and cure a sufficient supply of hay and other feed to keep the live stock properly during the approaching winter of 1916-17; and they also, without the consent of and against the wishes of plaintiffs, attempted to assign the lease and deliver possession of the property, both real and personal, to the defendant Nellie K. Smith, who claims to be in possession thereof in violation of the terms of such lease. Then follows a recital of facts whereby it is sought to establish the theory that the contract was personal in its nature, and therefore not assignable. It is further alleged that, by reason of the several breaches of covenant set out, plaintiffs undertook to re-enter and take possession of the premises and personal property, and to evict the defendants, who successfully resisted such efforts, and that plaintiffs, before commencing this action, made demand upon defendants for the return of the personal property, which was refused. Upon filing the complaint, plaintiffs also filed an undertaking in claim and delivery, and with the aid of the sheriff secured possession of the property with the exception of certain specified items which the sheriff was unable to find.

The defendant Birdie O. Backus filed an answer denying that she was a party to the lease, and the other defendants answered jointly, denying the breaches of covenant, as also the connection of Birdie O. Backus with the contract. They then pleaded affirmatively that, prior to the commencement of the action, W. E. Backus had assigned his interest in the lease and property to the defendant J. E. Backus, whereupon the latter entered upon the sole and exclusive possession of the property and so continued until November 8, 1916, when he sublet the same to the defendant Nellie K. Smith, for a term ending December 1, 1920, upon the expressed condition that she should pay to plaintiffs the rent provided for in the written lease set out in the complaint; that for the months prior to November they had paid the rental promptly, and on November 8 the subtenant, Nellie K. Smith, had tendered to plaintiffs the sum of $300, being the rental for the month of November, but the plaintiffs refused to accept it from her, basing such refusal upon the ground that they declined to recognize the validity of the sublease. It is also averred that the subtenant, when she entered into possession of the premises, employed the defendant J. E. Backus as her agent to care for and conduct the farm and chattels described in the lease, and to operate the dairy business in which the property was employed. Then follows an allegation of the retaking by plaintiffs, which concludes thus:

"And thereupon said sheriff did, on the 14th day of November, 1916, pursuant to said direction, seize and take from the possession of the defendants J. E. Backus and Nellie K. Smith, all said personal property, goods and chattels, and still retains the same to the damage of the said defendants, J. E. Backus and Nellie K. Smith, in the sum of two thousand dollars."

A reply, consisting of admissions and denials, was filed, and thereafter there was a trial by court and jury, wherein the court granted a nonsuit as to the defendants J. E. Backus and Birdie O. Backus, and directed the jury to return a verdict in favor of the defendant Nellie K. Smith for a return of the property to her, or its value in the sum of $6,000, if such return could not be had, and further directed that the jury fix the amount of damages for the wrongful detention, in a sum not exceeding $50. A verdict was returned in accordance with the court's instruction, fixing the amount of damages at $25, and judgment was entered thereon, from which plaintiffs appeal.

R. R. Duniway and C. L. Whealdon, both of Portland (Glen R. Metzker, of St. Helens, and Frederic H. Whitfield, of Portland, on the brief), for appellants.

I. N. Smith, of Seattle, Wash., and J. H. Hendrickson, of Portland (John F. Logan, of Portland, and G. Clyde Fulton, of Astoria, on the brief), for respondents.

BENSON, J. (after stating the facts as above).

Plaintiffs' numerous assignments of error are founded upon the theory that the lease was not assignable, and that they were entitled to introduce evidence to show that the contract was based upon the special skill and reliability of the lessees, in support of their contention that the sublease was a violation thereof. It is also urged that evidence tending to establish the breach of other conditions of the lease should have been admitted to establish their right of re-entry, and to recover the personal property, and further that it was error to grant a nonsuit as to the defendants J. E. Backus and Birdie O. Backus. The defendants insist that the lease expressly authorizes assignment thereof, and that the language of the contract makes the transfer of the personal property a sale rather than a bailment, thereby taking from plaintiffs any right in replevin, and limiting them to an action for debt.

Plaintiffs urge the contention that the lease in question is to be construed like the one in the case of Meyer v. Livesley, 45 Or. 487, 78 P. 670, 106 Am. St. Rep. 667, a case in which a hopyard was leased to be farmed upon shares, and in which it was held that the nature of the agreement disclosed that the lease was a personal contract, not assignable without the consent of the lessor. This case does not aid the plaintiffs, for the reason that in the present case the contract contains the following language:

"That the said parties of the first part, for and in consideration of the rents, covenants and agreements hereinafter mentioned, to be paid, kept and performed by the parties of the second part, do hereby lease and farm-let unto the said parties of the second part, their executors, administrators and assigns, for a term

...