99 Or. App. 317 781 P.2d 1249

Argued and submitted April 10,

reversed and remanded with instructions November 8,1989

REPUBLIC ALBANY CORPORATION, Respondent, v. GRICE, Appellant.

(87-0907; CA A48171)

781 P2d 1249

Edward J. Harri, Salem, argued the cause for appellant. With him on the briefs was Edward L. Daniels, Salem.

David B. Knower, Albany, argued the cause and filed the brief for respondent.

Before Richardson, Presiding Judge, and Newman and Deits, Judges.

*318DEITS, J.

*319DEITS, J.

Plaintiff brought this action for breach of a lease. Defendant counterclaimed, for constructive eviction, and affirmatively raised that plaintiff failed to comply with the lease and with oral representations made by plaintiffs representative regarding the lease.1 The jury returned a general verdict for defendant. However, the trial court granted plaintiffs motion for new trial on the ground that it erred in its instructions to the jury. We reverse and remand.

Defendant, a chiropractor, entered into a five-year lease agreement with plaintiff in 1983 for the rental of office space. Defendant became increasingly dissatisfied with the conditions of the facility and, with about two years remaining on the lease, vacated the premises and stopped paying rent. Plaintiff relet the space at a lesser rate. Plaintiff then brought this action for the difference in rents.

Defendant argues that the trial court erred in granting plaintiffs motion for new trial. An order granting a new trial will be upheld if any ground in the motion is adequate to sustain the action, whether or not it was the stated basis for the trial court’s ruling. Snyder v. Hunter Room, Inc., 269 Or 536, 538, 525 P2d 1293 (1974).

Plaintiff asserted two grounds for new trial in its motion. First, it contended that, under ORCP 64B(5), there was insufficient evidence to sustain the verdict and that the judgment was “against law.”2 If a general verdict is returned, *320it is ‘against law’ only if there is no evidence to support it. Thus, if there is evidence to support a verdict, there is no basis for a new trial under ORCP 64B(5). The jury returned a general verdict, and we conclude that there was sufficient evidence to support it.

The second ground for a new trial asserted by plaintiff, under ORCP 64B(6), was that the court erroneously instructed the jury concerning the alleged oral representations.3 Plaintiff argues that the instruction was improper, because it related to an affirmative defense that was stricken from the pleadings pursuant to plaintiffs ORCP 21 motion. However, defendant’s answer and amended answer raised two affirmative defenses: one based on the written lease and the other on oral representations. Plaintiffs Rule 21 motion was directed only to the allegations concerning the written lease. The allegations relating to the oral representations remained a part of the pleadings, and evidence was received without objection concerning those allegations.

Plaintiff also argues that, even if it failed to move against the allegations of oral representations, the trial court’s instruction on those representations was wrong, because the court instructed on a contract theory when defendant pleaded misrepresentation.4 We do not agree with plaintiffs reading of the pleadings. The pleadings concerning the oral representations allege that, in addition to the written lease provisions, plaintiff made oral representations that defendant relied on when he entered into the lease. Those allegations are contractual in nature and, therefore, the trial court’s instruction was consistent with defendant’s pleadings.

None of the grounds in plaintiffs motion for new trial warranted granting a new trial. Accordingly, the trial court erred in granting plaintiffs motion.

*321Reversed and remanded with instructions to enter judgment for defendant on the verdict.

Republic Albany Corp. v. Grice
99 Or. App. 317 781 P.2d 1249

Case Details

Name
Republic Albany Corp. v. Grice
Decision Date
Nov 8, 1989
Citations

99 Or. App. 317

781 P.2d 1249

Jurisdiction
Oregon

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