Daily capital journal. (Salem, Oregon) 1903-1919, 1911-04-10
Gunst & Co. W Myers, MuItnOmah
County.

Gunst & Co. W Myers, MuItnOmah
County.
NJ. A. Gunst & Co., Of Portland,
corporation, respondent " Bertha
Myers, appellant Appeal from the
circuit court for Multnomah county.
The Hon. c. U. Gantenbein, Judge.
Argued and submitted March Is,
1911. w. A. Johnson (Teal, Minor &
Winfree, on brief for respondent.
Claude Strahan land H. E. McGinn,
on brief for appellant. Eakin, C. ].
Affirmed.
For several years plaintiff has been
and is now the lessee of the build
ing at the corner of Third and Alder
streets, Portland, consisting of sew
eral occupancies, including rooms
numbered 141 Y, 143 and 14S1a on
Third street, the corner room being
occupied by plaintiff for a cigar and
tobacco business. Room No 141 Y
had been occupied by one Blair; No,
lab by Reed for a saloon, and No.
1872 was on or prior to March 81,
1909, occupied by defendant in con-
Quoting a loaning and mercantile
business under a lease from the
plaintiff, which expired March 81,
1909. Upon April 2. 1909, plaintiff
brought this action of forcible entry
and detainer in the Justices court
for possession of room No. 143 u.
Defendant, by her answer, alleges
that on February 1, 1909, plaintiff
and Reed entered into an agreement
by the terms of which plaintiff agreed
to let and lease to Reed the build
ing, excepting the corner room, for
a term of years beginning April 1,
1909; that thereafter on February 12,
1909, Reed let and demised the prem
ises described in the complaint, room
No. 143 ", to defendant for period
of one year, at the agreed rental of
$500 per month; and that defendant
is occupying the same under the
lease.
Verdict and Judgment were rem
dered in favor of plaintiff and defen-
dant appealed. The cause was tried
in the circuit court, at which the
court directed a verdict for plaintiff
and rendered judgment thereon. De-
fendant appeals to this court.
Eakin, c. j.: Defendants right to
the possession of the premises de-
pends upon the authority of Reed to
lease the property to her, and wheth-
er he did so. The lease from plaintiff
to Reed, which is dated March 10,
1909, was offered in evidence by de-
fendant, and was excluded by the
court as incompetent and immaterial,
and the defense depends wholly upon
the terms thereof By it plaintiff
leases the premises to Reed in con-
sideration Of the provisions therin
contained on part of the second par
ty (Reed) to be observed and per-
formed. On the first of every month
Reed is to pay $3.50 rental for the
whole of the premises, including the
three occupancies, there being no
segregation of the rental as to each
occupancy. 1t is provided that he
will use and occupy said premises
for saloon purposes only; that
he will not assign this lease, or his
interest therein, or permit any per-
son or persons to occupy said prem
ises or any part thereof, without the
consent of the first party first had in
writing allowing thereof = +.
1t is understood by the parties here |
to that the leased premises are now
occupied by tenants of the first party, |
and that the term of said tenants ex-
pires on March 81, 1909; if, for any
cause, the tenants now in possession
Of said leased premises fail to give
possession to the first party March
S1st 1909, the term for which the
premises are leased by this agree
ment shall commence when the first
party shall rcover possession of said
leased promises, and the rent re-
serve shall be reduced in an amount |
equal to fifteen dollars (S15) for
each day that the second party shall
thereby be kept out of possession"
If Reed had had authority to sub
let the premises to defendant on the
first day of April, and did so, and
she attorned to him. at that time it
would amount to surrender to plain
tiff by defendant within the clause
last above quoted from the lease.
But the clause first above quoted
prohibits Reed from making any
ease except for saloon purposes and
only then with the consent of plain
-iff first had in writing. Defendant
las not brought her possession with
n either of these conditions; neither
toes it appear that she has attorned
Reed, 1t Is not shown that Reed has
her as his tenant On
he contrary her agent testifes that
she rendered rent to Reed and he re-
used to receive It,