Martin v. Weiss

186 P. 550, 95 Or. 35, 1920 Ore. LEXIS 15

• Court: Oregon Supreme Court
• Decided: January 27, 1920
• Status: Published

Opinion

BENSON, J.

1. Upon the trial of the case, defendants objected to the admission of any evidence in support of plaintiff’s claims, for the reason that the allegations of the complaint do not constitute a cause of action. The objection was overruled and exception taken. When plaintiff had concluded the taking of his testimony and rested his case, defendants moved for a judgment of nonsuit upon the same ground, and thereafter moved for a directed verdict upon the same ground, both of which motions were denied. After judgment had been entered upon the verdict, defendants' moved to have the same vacated and for a new trial, assigning as error the rulings above mentioned. A hearing was had and the court made an order setting aside the judgment and granting a new trial, which now presents to us the question as to whether or not the plaintiff’s complaint states facts constituting a cause of action. The ultimate facts recited in the complaint are, that when the tenancy had existed for a period of three months, during which time there had been no accruing profits from the venture, the plaintiff, with the consent of his landlord, voluntarily surrendered- his estate without exacting any terms or conditions therefor.

There is no allegation of eviction, or breach of the contract, by defendants, or anything to indicate that the surrender was other than voluntary. It is true that both the complaint and the answer allege a mutual rescission of the contract, but the rescission of a lease of real property necessarily involves a surrender: 2 Tiffany on Landlord and Tenant, § 187.

A surrender of a leasehold estate has the effect of extinguishing all the interest of the tenant in the term and all rights conditioned upon its continuance: 2 Tiffany on Landlord and Tenant, § 191; 16 R. C. L. 1157; 24 Cyc. 1378. A case strikingly in point is that of Boyd v. Gore, 143 Wis. 531 (128 N. W. 68, 21 Ann. Cas. 1263). This was a case wherein the plaintiff’s assignor, a tenant, had vacated the premises before the end of the term, and thereafter assigned an alleged claim to plaintiff for services performed while a tenant. The chief item in such claim was a demand for plowing the land, from which no crop had been pro-, duced by reason of the tenant’s surrender of the premises. Referring to this item, the court says:

“It is quite well settled that, where there is a voluntary surrender accepted by the landlord, all liabilities under the lease which would arise in the future had no surrender taken place are terminated, but liabilities which have already accrued remain unaffected: 2 Tiffany on Landlord and Tenant, 1348, 1349. Under no view of the case, therefore, can the plaintiff recover for the plowing done in the fall of 1907, for his contract required him to do it, and his voluntary surrender of possession raises no obligation on the part of the landlord to pay for it.”

The facts in the cases of this character are very different from those of contracts for sale or exchange of property, even for services rendered. The plaintiff was at no time in the employ of the defendants. He was at all times working for himself and it rested entirely with himself to remain in possession of the premises until such time as the profits should compensate him for his expenditures and labor, or to abandon the same and forego the opportunity to realize a benefit from the investment.

The judgment of the trial court must be affirmed.

Affirmed.