Gearin v. Rothchild Bros.

189 P. 992, 96 Or. 351, 1920 Ore. LEXIS 169

• Court: Oregon Supreme Court
• Decided: May 25, 1920
• Status: Published

Opinion

JOHNS, J.

1. The lease now before this court is the identical instrument upon which the action was brought in the case of Gearin v. Rothchild, 88 Or. 403 (170 Pac. 923), is between the same parties and concerns the same property. Both, cases are for arrears of rent prior to forfeiture, and the causes of action are identical in form, differing only as to the months’ rental for which recovery is sought. The earlier litigation was for arrears of rent for half the month of March and the month of April, 1916, and the instant action is to recover rent for the months of May, June, July and August of the same year. In the former case, as in the present, there was no forfeiture or surrender at the time the action was commenced. There, this court held the defendant liable for arrears of rent then accrued. Here, the defense is based solely upon the fact that after the rent became due and the cause of action had arisen,' and before this litigation was commenced, the plaintiff brought her action for forcible entry and detainer and through judgment of eviction obtained possession of the property; and it is contended that after she had so obtained possession by eviction she could not recover for the prior rental which had accrued.

The plaintiff was the owner of the property and made the lease to the defendant “in consideration of the covenants and agreements hereinafter contained, on the part of the said lessee to be by it done, kept and performed.” The covenants “hereinafter contained” are the promises to construct a building on the property at a cost of not less than $85,000, to pay the taxes, insurance and assessments against the premises, and to pay the stipulated rental during the life of the lease. All of these provisions entered into and were a part of the consideration for the making of the lease.

That instrument expressly provides that the ownership of all buildings or improvements placed upon the premises “shall vest in the lessor immediately after the same are constructed.” Although it is true that the lease recites that, in case of total destruction of the building by fire, the lessee may abandon the lease, and that by delivery to the lessor of her proportionate share of the insurance “the lease shall terminate,” no such event occurred; and there is no claim that the lessee surrendered or abandoned the lease. It is alleged and admitted that the rent was not paid; that for such reason the defendant was evicted; and that the lease was terminated by the lessor. This she had a legal right .to do. The instrument further provides that such action on her part shall be “without prejudice to any remedies which might otherwise be used for arrears of rent or preceding breach of covenant.” When the defendant constructed the building, it legally knew that, by the terms of the agreement, the same would become the property of the plaintiff, and it also knew that this was one of the considerations upon which it was to have the use and occupation of the property upon paying the stipulated monthly rental in money; that, if such cash rental should be in arrears for ten days, the plaintiff at her option could terminate the lease; that, when it was so - terminated, the agreement and all rights thereunder should be at an end and the plaintiff would be entitled to the property; and that such termination and' possession would be without prejudice to any remedy which she might otherwise have for collecting arrears of rent. There is no merit in the defense. The judgment is affirmed. Affirmed.

McBride, C. J., and Bban and Bennett, JJ., concur.