Fluhrer v. Bramel ( 1938 )

In Banc. Respondent moves the court for an order dismissing the appeal, in the above entitled cause, taken by defendant Bramel, insofar as said defendant appeals from the decree in favor of plaintiff, for the reason that said defendant has, since the entry of said decree, acquiesced therein and has acted in affirmance thereof.

The decree appealed from rescinded the contract between plaintiff and defendant Bramel, for the sale of a certain service station situated at 8140 S.W. Macadam Ave., Portland, Oregon, thereby adjudicating that the defendant Bramel was the owner of the property, which was the subject matter of the contract of sale, and after the entry of said decree Bramel rented said property to Wolfer's Automotive Service, Inc., for the term of one year, thereby acquiescing in the decree.

The circuit court also rendered judgment in favor of defendant Wenger and against defendant Bramel for commissions earned by Wenger in bringing about the contract of purchase and sale between Bramel, as seller, and Fluhrer, as purchaser. Defendant Bramel also appealed from the judgment in favor of defendant Wenger. This motion to dismiss has no effect upon the appeal of Bramel from the judgment in favor of defendant Wenger.

The lease of the service station in question from W.E. Bramel to Wolfer's Automotive Service, Inc., is evidenced by written correspondence between those parties. After the execution of the lease, the Wolfer's Automotive Service, Inc., paid the rent of the service station, $35 per month, to Bramel, until June 23, 1937, when notice was given to it that the lease had been assigned to the First National Bank of Portland. Thereafter Wolfer's Automotive Service, Inc., paid the rent to the First National Bank.

Upon plaintiff's attempting to serve the levy and execution upon the service station, as the property of Mr. Bramel, on or about June 16, 1937, Mr. Bramel stated that they would not be able to levy upon the service station or lunchroom because he had leased the service station to Wolfer's Automotive Service, Inc., and the lunchroom to one Charlie Claussen, and that these parties were in possession under the leases and had paid several months' rent in advance.

It is shown by the affidavit of W.E. Bramel that he leased the lot upon which the service station and lunchroom were situated from Joseph Weber, and had an option to purchase the lot; that after the decree, the plaintiff having surrendered the said property and not supplying any further moneys with which to pay rent to the landlord, it became absolutely necessary for defendant Bramel to make some use of the property to get money with which to keep up the property during the pendency of this litigation, and thereafter he leased portions of said property to various tenants for monthly rentals, as it became necessary. He claimed it was the understanding and agreement with each tenant that possession would be delivered if and when the court should order or decree that possession should be given or that plaintiff was not entitled to rescission. But the writings evidencing the lease by Bramel to the Wolfer's Automotive Service, Inc., do not show any such right reserved.

It is plainly shown that the defendant W.E. Bramel has acquiesced in the decree and treated the property that he had contracted to sell to plaintiff as his own, having improved it by installing a hot-water system and sink and repaired the plumbing, in conformity to the decree.

In Kellogg v. Smith, 70 Or. 449 (142 P. 330), after the trial court rendered a decree rescinding the transaction, defendant took possession of the property, a laundry, and operated the same a portion of the time and then leased it to a third party. The defendant attempted to avoid the effect of that lease by contending that he merely placed someone in possession to care for the property pending the appeal, and that he was at all times in a position to surrender the property to the plaintiff, if the appeal should be successful. The court, upon consideration, determined the contention was not made in good faith.

It appears that when Bramel leased the property in question and collected and appropriated the rents, he did so for his own benefit and account, as owner of the property.

In Elwert v. Marley, 53 Or. 591 (99 P. 887, 101 P. 671, 133 Am. St. Rep. 850), plaintiff sued for a decree restraining defendant from making use of certain wharfage rights. Defendant claimed the right to the use of the wharf in question. The trial court rendered a decree denying defendant the right to use the wharf and enjoining the use thereof. Defendant appealed from the decree, but subsequent to the entry defendant entered into a lease with plaintiff's grantee of the land in question for the use of said wharf. Thereupon plaintiff moved to dismiss the appeal on the ground that defendant took a lease for the use of the wharf, in effect conceding that he had no right to the use of the same without a lease and hence his conduct constituted an acquiescence in and an affirmance of the decree. This court, in dismissing the appeal, said:

"A party to an action may, by his acts subsequent to a judgment or order against him, waive his right to have such right or order reviewed by an appellate court, as by acquiescing therein by payment or part payment, or by accepting the benefits thereof. Moore v. Floyd, 4 Or. 260; Portland Const. Co. v. O'Neil, 24 Or. 54 (32 P. 764)."

In Lange v. Devlin, 80 Or. 238 (156 P. 260), it was said:

"The appellant used and dealt with the land as though it then intended fully to accept and accede to the terms of the decree, and it will not be permitted to change the position which it voluntarily assumed. Kellogg v. Smith, 70 Or. 449, 456 (142 P. 330), furnishes a conclusive precedent. See, also, Thomas v. Booth-Kelly Co., 52 Or. 534 (97 P. 1078, 132 Am. St. Rep. 713); Elwert v. Marley, 53 Or. 591 (99 P. 887, 101 P. 671, 133 Am. St. Rep. 850); 3 C.J. 665, 669.

"The appeal is dismissed."

The appeal of defendant W.E. Bramel from that part of the decree in favor of plaintiff F.W. Fluhrer is dismissed.

LUSK, J., took no part in the consideration of this motion.