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Miller v. Der Wienerschnitzel International Inc.

May 17, 1973

MILLER ET UX, RESPONDENTS-CROSS-APPELLANTS,
v.
DER WIENERSCHNITZEL INTERNATIONAL, INC., APPELLANT



Appeal from Circuit Court, Lane County. Edward Leavy, Judge.

James H. Anderson, Eugene, argued the cause for appellant. On the briefs were Thompson, Mumford & Woodrich.

Merwin C. Logan of Moore, Wurtz & Logan, Springfield, argued the cause for respondents-cross-appellants. On the brief were Gildea, Speer & McGavic, P.C., and Stephen R. Blixseth, Eugene.

McAllister, Justice. O'Connell, Chief Justice, and Denecke, Tongue, Howell and Bryson, Justices.

Mcallister

The plaintiffs, as lessors, brought this action against their lessee, Der Wienerschnitzel International, Inc., for damages for breach of lease. The court tried the case sans jury and held for plaintiffs. Defendant appeals and plaintiffs cross appeal.

Defendant concedes that it breached the lease and objects only to the amount of damages awarded.

Plaintiffs bought a parcel of land in Eugene shortly after their predecessor had leased it to defendant and are the assignees of the lessor's interest in the lease. The lease required the lessor to construct on the premises, according to defendant's plans and specifications, a building to cost about $40,000. The lease was for a 20-year term at an agreed rental of $880 per month and was dated August 1, 1969. Defendant was to use the premises as a drive-in frankfurter restaurant. Plaintiffs did not construct the building because defendant never furnished them with any plans and specifications.

Late in 1969 plaintiffs learned that defendant did not intend to perform under the lease. Sometime in 1970 plaintiffs leased the premises to a new tenant for a fish and chips restaurant. Pursuant to the new lease plaintiffs built a building at a cost of $33,070.82 and received a monthly rental of $785.71 per month.

The record does not disclose exactly when the new lease was executed, but there is evidence that construction on the building commenced in 1970 and that the new tenant took possession on March 28, 1971.

In addition to the cost of the building plaintiffs paid $5,500 to a real estate broker as a commission for obtaining the new tenant and $410 in attorney's fees incurred in connection with the new lease.

Defendant first contends that the court erred in awarding plaintiffs "the full amount of the reserved rent from August 15, 1970 through March 1, 1971." Although defendant's lease was dated August 15, 1969, it provided that the 20-year term was to begin:

"* * * (a) the date that the Der Wienerschnitzel restaurant to be constructed hereunder by Tenant [sic] is first opened for business; or (b) fifteen (15) days after completion of improvements; or (c) one (1) year from the ...


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