Lilley v. Gifford Phillips Wood Products, Inc. , 211 Or. 439 ( 1956 )

PER CURIAM.

The defendant rented certain real property in Baker, Oregon, from the plaintiffs. On November 2, 1953, the defendant notified the plaintiffs in writing that it was terminating its tenancy as of December 3, Í953. On November 3, 1953, the plaintiffs notified the defendant that it had been using space on the real premises not covered by its tenancy agreement and that should it continue to use this portion of plaintiffs’ real property after December 3, 1953, the rental for the property so used would be $50 per day.

The defendant continued to use the space not included in the prior rental for 133 days, and the plaintiffs in their separate complaints, which covered the 133 days, sought recovery of the sum of $6,650. Plaintiffs also sought recovery of the sum of $474 for the use of a small portion of the real property formerly léased by the defendant, which plaintiffs contended defendant occupied after its termination of the lease.

The jury returned a verdict for the plaintiffs in the sum of $3,215, and the defendant appeals.

The defendant assigns as error the trial court’s failure to sustain its demurrer to each of plaintiffs’ amended complaints, because each complaint fails to state facts sufficient to constitute a cause of action.

Defendant states:

“In the instant case the principal issue is whether or not defendant had the use and occupancy of a portion of Plaintiffs’ real property. The plaintiffs’ complaints state that ‘defendant has occupied a portion of said premises.’ (Paragraph IV plaintiffs’ complaint in each case.) Such an allegation is a conclusion of law and states no facts which enable the defendant ‘to come into court advised before hand of the particular facts he must contest.’ ”

Assuming that defendant had demurred to each of plaintiffs’ amended complaints, which fact does not appear from the record, this contention is without merit. The complaints each set forth a description of the real premises and allege the defendant’s occupancy. This is a statement of a fact and not alone a conclusion.

The defendant also complains that the verdict is not responsive to the pleadings because the plaintiffs’ complaints each allege an express contract to pay $50 per day for each day the defendant is in possession of plaintiffs’ premises. Defendant argues that, if plaintiffs were entitled to recover at all, they must recover .for the 133 days of defendant’s occupancy, or a total of $6,650, whereas, the jury granted a recovery of only $3,215.

If the jury committed error in returning a lesser verdict than the plaintiffs were entitled to, the error committed was favorable to the defendant and it cannot complain. Boyer v. Anduiza, 90 Or 163, 175 P 853.

The judgment is affirmed.