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Adamson v. Thrall

September 10, 1973

ADAMSON ET UX, RESPONDENTS,
v.
THRALL ET UX, APPELLANTS



Appeal from Circuit Court, Clackamas County. Winston L. Bradshaw, Judge.

Reuben Lenske, Portland, argued the cause and filed briefs for appellants.

Walter L. Crow, Jr., Portland, argued the cause for respondents. On the brief were Pozzi, Wilson & Atchison, Portland.

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

Denecke

In the first trial of this case the trial court held the defendants had no interest in the property under a claimed lease option agreement and awarded plaintiffs judgment for rent and restitution of the premises. On appeal we held the defendants did have a contract interest; however, they were in default. Adamson v. Thrall, 262 Or 408, 498 P2d 379 (1972). We remanded the case for entry of an appropriate decree of foreclosure. Thereafter, defendants filed a supplemental answer. They alleged plaintiffs were not entitled to foreclosure because they did not come into court with clean hands; that plaintiffs owed them rent for the period during which defendants were evicted and asked for damages for waste to the premises which plaintiffs permitted. They also sought to recover their costs of moving on eviction. The trial court entered a decree of foreclosure and did not hold for defendants on any of their claims.

The defendants made the contention on the first appeal that plaintiffs were not entitled to a decree of foreclosure because they did not have clean hands. We found against defendants and directed the trial court to enter a decree of foreclosure and that issue cannot be relitigated.

This is in equity and we try the case de novo.

Assuming, without deciding, that defendants would be entitled to a reasonable rental between their eviction and the present, we find there was no credible evidence from which to establish a reasonable rental.

Mr. Adamson testified at the first trial that the reasonable rental value at the time he rented to the defendants was $150 per month. He testified at this trial, however, that because of the condition in which the defendants left the property it was unrentable.

We likewise find there was no credible evidence of the reasonable costs of defendants' moving in response to the eviction order.

Assuming, without deciding, that the defendants would be entitled to damages for waste, we find as a matter of fact that the plaintiffs acted as reasonably prudent persons in the preservation of the property after the defendants were evicted and, therefore, are not liable for any damage to the property occurring after eviction.

The trial court awarded plaintiffs $4,000 attorney fees. Defendants contend this was error for several reasons. Defendants contend there was no contract authorizing attorney fees. As stated in our first opinion, plaintiffs tendered various forms of contracts to ...


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