Morton v. Wessinger

Mr. Justice Bean delivered the opinion of the court. 1. The errors assigned all pertain to the ruling upon the demurrer. It is claimed by defendants that the agreement, on the part of the lessors to erect the building, is contained in that part of the lease describing the premises as “store number five of the building being erected by the lessors.” and that the agreement “in the event of the inability of the lessors to deliver possession of said premises at the time agreed” shows that the building was to be completed by the 20th day of August, 1906. In considering the sufficiency of the answer upon the demurrer, the rule is that the pleader is presumed to state his case as strongly as the facts justify: 31 Cyc. 81, 86; Pursel v. Deal, 16 Or. 295, 298 (18 Pac. 461); Cederson v. Navigation Co., 38 Or. 343, 349 (62 Pac. 637: 63 Pac. 763); Oregon & Cal. R. R. Co. v. Jackson Co., 38 Or. 589, 597 (64 Pac. 307: 65 Pac. 369.) 2. It is contended on the part of plaintiff that the separate answer fails to state facts sufficient to render the contract void, for the reasons, among others: (1) Because the lease contains no stipulation to do any act unlawful or prohibited by ordinance; (2) because the ordinance prohibits only frame buildings, and it is not alleged that the structure in question is a frame building. The word “frame,” as used in the ordinance, is synonymous with “wooden,” one having the same meaning as the other: 3 Words & Phrases, 2929; Ward v. City of Murphysboro, 77 Ill. App. 549. At the outset it should be noted that this lease or contract solely relates to the leasing of the premises, and is not a contract for the erection of a building. [84] If, however, we assume that the completion of the structure was contemplated by the lessors, and that on the date of the execution of the lease it was “being erected,” we must consider the allegations of the new matter contained in the answer of defendants, and determine whether or not such completion would be a violation of the ordinance referred to. 3. It clearly appears that the purpose of the ordinance was to prevent the construction, alteration, or enlargement of frame buildings within the fire limits. The date on which the structure was commenced is not stated in the answer, nor is it mentioned what portion thereof remained to be completed at the time of the agreement. Neither does the lease contain, nor the answer set forth, any covenant to complete the building with wooden material. In so far as this appears it would have been a sufficient compliance with the terms of the lease for the lessors to have completed the store with any suitable material not prohibited by the ordinance. The number given would indicate that there were at least five storerooms in the building. It is quite possible that, when the ordinance was adopted, store No. 5 was completed and nine-tenths of the building constructed, or that only the roof was necessary for its completion. Nothing to the contrary is stated in the answer; the allegation that the building was an unlawful structure not having such effect, it is a mere conclusion: 31 Cyc. 333, 337; Longshore P. Co. v. Howell, 26 Or. 527, 535 (38 Pac. 547: 28 L. R. A. 464: 46 Am. St. Rep. 640); O’Hara v. Parker, 27 Or. 156, 166 (39 Pac. 1004.) 4. The answer should be construed so as to give it a fair and ordinary meaning: 31 Cyc. 79. 5. When both general and specific allegations are made respecting the same matter, the latter control: 31 Cyc. 85. 6. The question therefore arises whether or not the ordinance prohibited the completion of frame buildings, under course of construction at the time of its passage. Muni [85] cipal ordinances, establishing fire limits, cannot be retroactive, and require the removal of existing buildings therefrom: 28 Cyc. 741, 742. All statutes which encroach on the personal or property rights of the individual, are to be construed strictly, and in the absence of express words or necessary intendment or implication, it will be presumed that a statute is not intended to interfere with or prejudice a private right or title: 26 Am. & Eng. Enc. Law (2 ed.) 661. 7. The completion of a building, such as the construction of a portion or all of its roof, or otherwise finishing the same, after it has been carried to a considerable extent, is analogous to repairing. An ordinance prohibiting the erecting, establishing or rebuilding of certain structures within fire limits is not intended to interfere with any already existing. Glenn v. City, 5 Gill & J. (Md.) 424. The provisions of the ordinance do not indicate it was contemplated that the completion of frame buildings already commenced was intended to be prohibited thereby. If the lessors had the building in course of construction prior to the enactment of the ordinance, they would then have a vested right, of which the ordinance, according to a fair import of its terms, would not deprive them, even if it could: 28 Cyc. 742; Glenn v. City, 5 Gill & J. (Md.) 424; City of Buffalo v. Chadeayne, 134 N. Y. 163, 165 (31 N. E. 443.) We think that the demurrer was properly sustained. The judgment of the lower court is affirmed. Affirmed.