Sassen v. Haegle

Decision Date22 May 1914
Docket Number18,460 - (58)
Citation147 N.W. 445,125 Minn. 441
PartiesHERMAN SASSEN v. FRANK HAEGLE
CourtMinnesota Supreme Court

Action in the district court for Nobles county to recover $368.75. The case was tried before Nelson, J., and a jury which returned a verdict in favor of defendant. From an order denying his motion for a new trial, plaintiff appealed. Reversed.

SYLLABUS

Measure of damages.

1. The measure of damages recoverable by a lessor against the lessee for hauling away manure from a leased farm, instead of hauling and spreading it upon the farm as stipulated in the lease, is the reasonable cost or value of the manure spread as agreed.

Motion for new trial -- erroneous charge -- failure to take exception.

2. An instruction fundamentally wrong, or which has the effect of preventing a verdict for a substantial amount on a cause of action well pleaded and proven, may be assigned as error on a motion for a new trial, even though at the trial the attorney states that he has no exception to the charge. It is otherwise with inaccuracies of expression, failure to instruct on every hypothesis, or inadequate treatment of some phase of the controversy.

Lease -- waiver of right to remove fixtures.

3. A tenant in possession, owning and having the right to remove fixtures placed on the premises at his own expense and for his personal convenience, does not, by entering a new lease wherein he covenants to keep the buildings and improvements in repair, thereby waive his ownership and right to remove such fixtures during the term of the new lease.

Notice to purchaser of tenant's rights.

4. A purchaser of real estate in the possession of a tenant is chargeable with notice of all the interest and rights of the tenant therein.

E. J Jones and E. H. Canfield, for appellant.

J. A Town, for respondent.

OPINION

HOLT, J.

The action is for damages for alleged violations of the covenants of a farm lease. The defendant prevailed and plaintiff appeals from the order denying a new trial.

The brief facts are these: For over 25 years defendant had been a tenant of his father upon the farm in question. While such tenant he placed on the farm a water tank, watering and feeding troughs, furnished storm windows and doors for the dwelling house, installed a wagon scale on a stone foundation, affixed a hay carrier track to the barn, and fitted up a grain elevator in the granary, also placed therein a feed grinder; this elevator and grinder being operated by an old threshing machine horsepower connected therewith. Defendant testified that all this property was his, that he bought and installed the same while a tenant with the permission of his father, the owner of the farm, that it was to remain the property of defendant. The father admits this and testified that in the fall of 1909, at the time of the sale of the farm, he told plaintiff that this property belonged to defendant. This however is denied by plaintiff, except as to the tank and the troughs mentioned. On November 1, 1909, after plaintiff bought the farm he made the written lease in question with defendant, for one year from and after March 1, 1910. He was in possession as tenant when plaintiff bargained for the farm and remained so in possession until the last of February 1911, when he removed, taking away the property above mentioned. The action is based on covenants in the lease to the import that defendant would not remove any straw or manure from the farm, but spread upon said premises all manure made thereon; and that he would at the expiration of the lease surrender the premises in as good repair as when taken, and that he would while in possession keep and maintain all buildings, stables and improvements on the farm in good order. The breach alleged was: First, that defendant removed from the farm 125 loads of manure made thereon which with the spreading thereof was alleged to be worth $93.75; and, secondly, that he took away the wagon scales, hay carrier, storm windows and doors, elevator, feed mill and horse power mentioned, thereby damaging the plaintiff in the sum of $275. The answer admitted taking away 20 loads of manure, but alleged that more than that amount was made from feed not produced on the farm, and denied any damage. The taking away of the wagon scales and property described in the complaint was admitted, but it was alleged that all thereof was defendant's personal property.

The first assignment of error relates to the court's charge upon the measure of damages for failure to spread upon the farm the manure made thereon. The jury were instructed that defendant hauled the manure away from the buildings, so that in estimating damages the value of the labor in taking and hauling it from the barn should not be included, but simply the value the manure would have been to the land had it been spread thereon as agreed. While this instruction as to the measure of damages appears plausible, we believe it unsound. It may be true that the landlord's twofold purpose, in exacting the covenant, was the cleanliness of the barnyard and the fertility of the farm, the first of which the defendant carried out, but failed as to the last. But it is also true that the landlord had a perfect right to stipulate as to the disposal of the manure or as to the way in which the farm should be worked, and the tenant cannot evade compliance by showing that the farm became more valuable or fertile by omitting the agreed work or doing other work. Plaintiff's pleading and proof was directed to the reasonable value of performing what defendant agreed but failed to perform. Such reasonable cost or value was the natural and proximate damages. The question is not whether plaintiff made a wise or foolish agreement. He had a right to have it performed as made, and the resulting damage, in case of failure, is the reasonable cost of performance. Whether such performance affects the value of the farm was no concern of defendant.

The defendant contends that plaintiff is not in position to ask a reversal upon any error in the charge, for when the court, at its conclusion, inquired of counsel if there were any exceptions to it, both answered in the negative. Inaccuracy in expression, failure to instruct on every possible hypothesis, or inadequate treatment of some phase of the law applicable to the controversy does not, as a rule, entitle a party to take advantage thereof upon the motion for a new trial where, had the shortcoming in the charge been called to the attention of the court by an exception or suggestion before the jury retired, we might readily assume that the court would have promptly corrected the inadvertence. Steinbauer v. Stone, 85 Minn. 274, 88 N.W. 754; Bailey v. Grand Forks Lumber Co. 107 Minn. 192, 119 N.W. 786; Hedlund v. Minneapolis Street Ry. Co. 120 Minn. 319, 139 N.W. 603; Robinson v. Great Northern Ry Co. 123 Minn. 495, 144 N.W. 220. But we think the statute, section 7830, G.S. 1913, was designed to prevent a miscarriage of justice, and to that end allows counsel an opportunity to urge on a motion for a new trial a fundamental error in the charge although, when it was given, neither he nor the court perceived the mistake. Kincaid v. Jungkunz, 109 Minn. 400, 123 N.W. 1082; Robertson v. Benton, 88 Minn. 151, 92 N.W. 538...

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