Zelig v. Blue Point Oyster Co.

• Citation: 122 P. 756,61 Or. 535
• Parties: ZELIG v. BLUE POINT OYSTER CO. et al.
• Decision Date: 09 April 1912
• Court: Oregon Supreme Court

122 P. 756

61 Or. 535

ZELIG v. BLUE POINT OYSTER CO. et al.

Supreme Court of Oregon

April 9, 1912

Appeal from Circuit Court, Multnomah County; W.N. Gatens, Judge.

Action by M.A. Zelig against the Blue Point Oyster Company and another. From a judgment for plaintiff, defendants appeal. Affirmed.

See also, 113 P. 852.

This is an action to recover damages for the alleged unlawful use and occupation of certain premises held by plaintiff under a lease and subsequently sublet by him to defendants. The original complaint is as follows: "That at all times herein mentioned the above-named defendant the Blue Point Oyster Company was, ever since has been, and now is, a corporation duly incorporated, existing and doing business at Portland, Or., under and by virtue of the laws of the state of Oregon. That heretofore, and from and including the 1st day of September, 1908, to and including the 25th day of December, 1908, being a period of 116 days, the plaintiff was lessee from the owner and thereby entitled to the possession of the following described premises, to wit, the west half of those certain store premises at number 364 Morrison street in Portland, Or. That during the whole of said period, in paragraph two mentioned, the above defendants willfully maliciously, and without right, and against the consent of the plaintiff, occupied the whole of the premises in paragraph two described, and deprived the plaintiff during the whole of said period of the use of the said premises, to the damage of the plaintiff in the sum of $380."

There was an additional cause of action set up but it was waived on the trial. The defendants answered, denying all the allegations of the complaint except the incorporation of defendant the Blue Point Oyster Company, and for a further and separate answer alleged the following: "That at all times mentioned in plaintiff's complaint, and for a long time prior thereto, plaintiff was and has been in possession of the premises therein described, under and pursuant to a certain agreement of leasing duly made and entered into by and between plaintiff and defendant on or about the _______ day of May, 1908, and that at all of said times mentioned in plaintiff's complaint defendants were tenants of the plaintiff under and pursuant to said agreement, which acts are the same of which plaintiff complains in said complaint." Plaintiff answered, denying the new matter in the defendants' answer.

When the cause came on for trial, plaintiff asked leave to...