On the Merits.
[122 Pac. 757.]
Statement by
Mr. Justice McBride.This is an action to recover damages for the alleged unlawful use and occupation of certain premises held by plaintiff under a lease and subsequently sublet by him to defendants. The orignal complaint is as follows:
“That at all times herein mentioned the above-named defendant the Blue Point Oyster Company was, ever since has been, and now is, a corporation duly incorporated, existing and doing business at Portland, Oregon, under and by virtue of the laws of the State of Oregon. That heretofore, and from and including the 1st day of September, 1908, to and including the 25th day of December, 1908, being a period of 116 days, the plaintiff was lessee from the owner and thereby entitled to the possession of the following described premises, to-wit, *542the west half of those certain store premises at number 364 Morrison Street, in Portland, Oregon. That during the whole of said period, in paragraph two mentioned, the above defendants willfully, maliciously, and without right, and against the consent of the plaintiff, occupied the whole of the premises in paragraph two described, and deprived the plaintiff during the whole of said period of the use of the said premises to the damage of the plaintiff in the sum of $380.”
There was an additional cause of action set up but it was waived on the trial. The defendants answered, denying all the allegations of the complaint except the incorporation of defendant the Blue Point Oyster Company, and for a further and separate answer alleged' the following:
“That at all times mentioned in plaintiff’s complaint, and for a long time prior thereto, plaintiff was and has been in possession of the premises therein described, under and pursuant to a certain agreement of leasing duly made and entered into by and between plaintiff and defendant on or about the — day of May, 1908, and that at all of said times mentioned in plaintiff’s complaint defendants were tenants of the plaintiff under and pursuant to said agreement, which acts are the same of which plaintiff complains in said complaint.”
Plaintiff answered, denying the new matter in the defendants’ answer.
When the cause came on for trial, plaintiff asked leave to amend his complaint so as to extend the time in which he claimed that defendants unlawfully occupied the premises to February 10th instead of December 25th, as alleged in the original complaint, which amendment was permitted by the court, over the objection of defendants. Later in the trial the court permitted plaintiff to amend his reply so as to plead a judgment obtained by him against defendants in an action of forcible entry and detainer, in relation to the same premises, to which rul*543ing defendants excepted. Plaintiff was also permitted to testify, over objection, that he had an offer of $75 per month for the rent of the premises which defendants were unlawfully occupying then; and he was allowed to show that he subsequently let the premises for $70 per month. Affirmed : Rehearing Denied.
For appellants there was a brief over the names of Mr. Claude Strahan and Mr. Waldemar Seton, with an oral argument by Mr. Strahan.
For respondent there was a brief and an oral argument by Mr. Julius Silverstone.
Mr. Justice McBridedelivered the opinion of the court.
Appeals in matters of this kind are an abuse of the privilege of appeal. The defendants claimed that the rent they should have paid, and did not pay, amounted to about $213. The court found against them for $80 more than this, and we have a large transcript and extensive briefs over a net difference between the parties of $80.
4. The complaint states a cause of action against the defendants. The learned discussion between counsel whether this is an action “quare clausum fregit” or one sounding in case is wasted effort. Plaintiff states that he was entitled, as lessee under the owner, to the possession of the premises, and that defendants maliciously, without right, and against his consent, occupied the premises to his damage in the sum claimed. Now it does not matter whether he was in possession or out of possession, or whether he has by his pleading brought himself within any common-law form of action. He has stated in “plain, succinct language” a wrong done him, and that is all that the Code requires.
5, 6. The amendments appear to have been in furtherance of justice and were within the discretion of the *544court. The evidence objected to was possibly inadmissible, but does not appear to have misled the trial court.
7. The obnoxious testimony was concerning an offer of $75 per month and a subsequent letting for $70 per month. The court allowed plaintiff $55 per month and evidently disregarded the testimony of these witnesses.
Defendants had a fair trial and suffered injury to no substantial right, and the judgment is affirmed.
Affirmed : Rehearing Denied.