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Karamanos v. Hamm

September 10, 1973

KARAMANOS ET AL, RESPONDENTS,
v.
HAMM ET UX, APPELLANTS



Appeal from Circuit Court, Multnomah County. William Dale, Judge.

Garrett L. Romaine, Portland, argued the cause for appellants. With him on the briefs was Patrick M. Callahan, Portland.

James J. Damis, Portland, argued the cause and filed a brief for respondents.

In Banc. Bryson, J.

Bryson

Plaintiffs are the owners of commercial property in Portland, Oregon, which was leased to Charles G. Widman for a period ending June 30, 1972. Widman operated a tavern on the premises which he sold to the defendants, and on February 5, 1971, he assigned his leasehold interest in the premises to the defendants. Plaintiffs executed a consent to the assignment of the lease to the defendants which contained the following language:

"As further consideration for the acceptance of this lease by assignee, James E. Hamm and Laurel A. Hamm, husband and wife, the undersigned lessors hereby extend the above described lease for a period of two years from June 1, 1972 to June 1, 1974 under the same terms and conditions as to said lease contained, except that the monthly

rental during the extension period of said lease is to be $negotiable."

The record discloses that the parties did not agree upon a monthly rental during the "extension period" of the lease. After 30 days' notice to defendants to vacate the premises, plaintiffs brought this forcible entry and detainer action. The parties stipulated to the facts and presented a legal question to the trial court:

"THE COURT: In other words, you are telling me that the issue to be resolved in the forcible entry and detainer action is whether there was an extension of the lease by virtue of Exhibit 3 [quoted above]; is that what you are saying?

"* * * Yes, that is what we are saying, * * *."

The trial court entered judgment in favor of plaintiffs, granting them restitution of the premises. The defendants appeal and contend that the court erred in failing to construe the consent to assignment of lease as having created in defendants a valid extension of the lease to June 1, 1974.

Defendants argue that the language in the consent to assignment, "under the same terms and conditions as to said lease contained," is ...


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