Schmid v. Thorsen

McBRIDE, C. J. — 1-4. There is a woeful lack of a clear statement of the contentions of the. parties in the briefs and we have given above such a synopsis as will perhaps be sufficient for the purposes of this opinion. The evidence alone, much of it entirely irrelevant, would fill an entire volume of the Oregon Reports and to state the barest outline of it would “dizzy the arithmetic of memory” and encumber the opinion with matter of no permanent value. We have here a bill of exceptions settled by the presiding judge, and then a bill of exceptions to the rulings of the presiding judge in settling the original bill. This latter we decline to consider. If such a practice should be permitted there — 581 — would be no end to bills of exceptions and supplemental bills of exceptions, except the industry of counsel in preparing them and the complaisance of the presiding judge in certifying them. The whole defense as to the failure to put defendants in possession was evidently an afterthought which occurred to defendants when after six years of unprofitable occupancy of the premises, they discovered the city was encroaching slightly on the west side of the lot. With full knowledge of this fact they induced plaintiff to pledge his credit and his property for $25,000 to enable them to build upon the premises and the testimony indicates clearly that the delay in building was not caused by the lack of sufficient room to erect a building of the dimensions planned, but by the uncertainty as to whether the city would condemn and appropriate the strip of frontage required to widen Washington Street. It is well established that a condemnation of a part of the leased premises does not constitute an eviction; so the fact .that the city began condemnation proceedings and finally carried them to completion, does not furnish defendants any excuse for nonpayment of rent. In fact we do not understand that to be the contention of the learned counsel for defendants. His contention is that plaintiff unduly delayed a settlement of the matter to defendants’ injury. So far as delaying the suit was concerned, it is to be remembered that the' city was the plaintiff and the condemnation suit was brought to trial in regular course, or presumably so, as it i$ not contended that Schmid interposed any dilatory defense. As to whether he could have compromised the matter without a suit, it appears the only compromise possible would have been for Schmid to have given 495 square feet of his valuable frontage on Washington Street in exchange for 49 square feet of his own prop — 582 — erty on the west side of his lot, to which the city claimed some sort of piratical right by alleged adverse possession. It was established upon the trial of the condemnation suit that the value of the 495 feet of frontage was $8,000, and conceding that the city had a valid claim to the strip on the west side and that it would be as valuable as frontage, the proposition amounted to requiring Schmid to exchange $8,000 worth of property on his front for $800 worth on the west side. He was not bound to agree to any such a proposition, nor to throw away his property to protect his tenants from the consequences of condemnation, or the delay incident thereto. As far as delaying defendants in the construction of their building, the evidence indicates that plaintiff made unusual sacrifices to enable them to build. He voluntarily mortgaged his property to secure for them the means to build with, no provision for repayment of the principal being made. His conduct from the beginning was that of a fair and even indulgent landlord, and this is only one of many instances wherein people-who bought or leased property in Portland during the boom existing up to 1912, have sought to avoid the consequences of the present dull period by repudiating their bargains for unsubstantial reasons. As shown by the testimony, the defendants have continued in possession of the premises and availed themselves of the exertions and credit of plaintiff to secure money to build, and during the pendency of this action were actually building upon the property, and the real gist of their defense is not a counterclaim for the slightly diminished capacity of the building they were erecting but for the delay occasioned by Schmid’s refusal to allow the city to take his frontage without adequate compensation. — 583 — 5. The court did not err in excluding the counterclaim for the amount of damages awarded Schmid in the condemnation action. That case had been appealed and was pending in this court. The appeal involved other questions than that of damages. A reversal might have left the case in such a position that the city could have abandoned the proposed improvement altogether and the final affirmance here was not upon the merits but upon a technical acceptance by the city of the benefits of the judgment, as evidenced by its entering upon and improving the condemned property. Whatever rights the defendants had in the money awarded to Schmid, and it cannot be contended that they did not have some ultimate right, would not ripen until Schmid had collected the award in due course of law. That he used reasonable diligence in the matter is apparent and that anything in this action will estop or bar defendants from collecting from Schmid, when he collects from the city, whatever share of the damages their interest as lessees entitle them to claim cannot be reasonably asserted. 6. The contention that the court erred in submitting to the jury the question of plaintiff’s right to recover for delinquent taxes, which were a lien upon the property, but which he had not in fact paid, is untenable: Jones, Landlord & Tenant, § 420. There were numerous exceptions to the ruling of the court in the admission and rejection of evidence, and also personal remarks and arguments of counsel for plaintiff, some of which were not in good taste and might well have been omitted. The case seems to have provoked in some way a personal antagonism between counsel which is to be regretted, but we find nothing that would have been at all likely to prejudice defendants’ case before the jury, which seems to have been a remarkably intelligent and — 584 — attentive one as their frequent questions indicate. The charge of the court fairly and fully ■ presented the issues. Errors aggregating the ominous number of 23 are urged and to discuss each one separately would be to extend this opinion beyond the limits which the importance of the question demands. We are satisfied that the trial was a fair one and the verdict fully justified by the evidence, which has been read with great care. The judgment is affirmed. Affirmed. Rehearing Denied. Motion to Recall Mandate Denied. Mr. Justice Moore, Mr. Justice McCamant and Mr. Justice Bean concur. Denied September 24, 1918. On Motion to Recall Mandate. (175 Pac. 74.) Mr. Ralph R. Du/niway, for the motion. Messrs. Griffith, Leiter <& Allen and Messrs. Latourette S Latourette, contra. McBRIDE, C. J. — 7. This is a motion to recall the mandate in this case. The matters presented were all considered upon the original hearing and upon the petition for rehearing, but all of the twenty-three assignments of error were not specially noticed in the opinion: Ante, p. 575 (170 Pac. 930). Counsel for defendants urges that he has a right under Section 4, — 585 — Article VII, of the Constitution, to have each of the assignments separately discussed and passed upon. This section is as follows: “At the close of each term the judges shall file with the Secretary of State concise written statements of the decisions made at that term.” We do not construe this provision as requiring the judges to discuss in detail every assignment of error, serious or frivolous, made by counsel on appeal. To do so would entail endless labor upon the court; great additional expense upon the state in the matter of publication, and greatly delay the consideration of cases. The editorial work now consumes a great portion of the time of the court and in the interest of the public the length of opinions should be abridged rather than extended. The term “A concise statement,” of a decision looks rather to the conclusion arrived at than to the train of reasoning by which that conclusion was reached. 8,9. In a communication to the court counsel states that the fundamental question which he desires passed upon is this: “Can a lessor recover rent for the use of property, when he by his own acts is depriving the lessee of the beneficial use of the property.” We thought and still think we answered this contention in our original opinion, but as it is short and easily answered we will waive the fact that it comes too late and answer it now. Our answer is “No.” But that question is not in this case. Schmid did not by his own act deprive the lessees of the beneficial use of the leased property. If this was done it was done by the City of Portland. It proposed to lay out a street over a portion of the property and offered in return for the right to do so, to exchange $800 worth of property, to which it had no moral and probably no legal title, — 586 — for $8,000 worth of property which it proposed to take, and when Schmid refused to accept the inequitable bargain, the city commenced condemnation proceedings and finally condemned the property it had demanded. Schmid’s crime, in the eyes of counsel, was his refusal to accept this inequitable offer and thereby delaying his lessees in the construction of their building until the condemnation proceedings were concluded. A lessor is not bound to protect his lessee from the result of condemnation proceedings, and a taking of part of the premises under such proceedings does not affect the tenants’ liability to pay rent for the remainder not taken: 24 Cyc. 1133, and cases there cited; 16 B. C. L. 946. The rule contended for by counsel would require the lessor to accept any offer, however inequitable, under the penalty of forfeiture of his lease. As observed by counsel for appellant this proposition is the real meat of the case. Outside of it appellant had no real defense, and consideration of the other errors assigned was unnecessary. We will remark, however, that some of the strictures made by counsel for the plaintiff upon the action of counsel for defendants in advising defendants to withhold rent, were unnecessary and out of taste. The situation was peculiar and the course to be pursued was one upon which able attorneys might well differ, and if we had been of the opinion that this attack affected or could have affected the final result the case would have been sent back for a new trial. But a perusal of the evidence satisfied us the verdict was such as should have been rendered in any event, and it is seldom the case that the trial of one attorney by the other — 587 — has any effect upon the jury, except to recoil upon the head of the attorney making it. The motion to recall the mandate is denied. Motion Denied.