Arensman v. Kitch

• Decision Date: 26 January 1946
• Docket Number: 36504.
• Parties: ARENSMAN v. KITCH.
• Court: Kansas Supreme Court

165 P.2d 441

160 Kan. 783

ARENSMAN v. KITCH.

No. 36504.

Supreme Court of Kansas

January 26, 1946

Rehearing Denied March 15, 1946.

Appeal from District Court, Gray County; Karl Miller, Judge.

Action by C. H. Arensman against Frank Kitch for grain rent allegedly due under a farm lease. Plaintiff's demurrer to defendant's amended cross-petition as amended was sustained, and defendant appeals.

Judgment affirmed.

Syllabus by the Court.

1. When by the allegations of an answer a party assumes to set up either a counterclaim or a set off he must state a cause of action with the same particularity, completeness and exactness, as if the defendant were the plaintiff, and failure to do so makes such pleading subject to demurrer.

2. The successful resistance of a motion to make a pleading more definite and certain makes such pleading subject to a strict construction when it is subsequently tested by a demurrer.

3. After a motion to make a pleading more definite and certain has been sustained and later such pleading has been amended the allegations of the amended pleading with respect to matters on which the original pleading was motioned will be strictly construed and given the construction which is most unfavorable to the pleader.

4. When parties have carried on negotiations and have subsequently entered into an agreement in writing with respect to the subject matter covered by such negotiations, the written instrument constitutes the agreement between them and determines their rights.

5. A plaintiff purchased land which was occupied by a tenant under the terms of a written lease and permitted such tenant to remain on the land after its expiration and put it to crops. On failure of the tenant to account for rents alleged to be due during the terms of such holdover tenancy the plaintiff brought suit for their recovery. The tenant then filed an answer and cross petition wherein the claimed damages alleged to have been sustained by certain of his crops while he was still the tenant of plaintiff's grantor as a result of plaintiff's refusal to permit him to use water from other land then owned by plaintiff for irrigation purposes. He based his claim of right to the use of such water on an oral contract alleged to have been entered into between plaintiff and his original landlords, the McVaughs, by the terms of which such parties constructed an irrigation plant on plaintiff's land with the oral understanding it was to be used jointly by the plaintiff on his land and by the defendant as tenant of the McVaughs on the land then owned by them. In his answer he admitted he entered into a written contract with the McVaughs, in the form of an ordinary farm lease, which contained no provisions pertaining to irrigation rights or other reference to rights claimed by him as McVaughs' tenant under and by virtue of the oral contract alleged by him to have existed between the plaintiff and his lessors. Such answer and cross petition having been examined, it is held, on grounds fully set forth in the opinion, that the allegations to be found therein failed to state a cause of action.

H. O Trinkle, Ray H. Calihan, and Royland H. Tate, all of Garden City, for appellant.

John A Etling, of Kinsley (W. N. Beezley, of Kinsley, on the briefs), for appellee.

PARKER Justice.

Plaintiff brought this action to recover certain grain rent which he claimed was due him under the terms of an ordinary farm lease. The defendant, who is the tenant named in the lease, filed an answer and cross petition. In such answer he denied generally plaintiff's claim. By his cross petition he claimed damages alleged to have been sustained by certain of his crops as a result of plaintiff's refusal to permit him to use an irrigation plant located on land owned by plaintiff but not on the premises which defendant was farming.

The cross petition was first attacked by a motion to make more definite and certain, its principal purpose being to require defendant to reveal the nature, date, consideration, and terms of the contract relied on by him as according him the right to use such irrigation facilities. Two paragraphs of the motion were sustained. Five others were successfully resisted. Defendant then filed an amended cross petition. Later he filed an amendment to his amended cross petition. Thereafter plaintiff demurred to the amended cross petition as amended for the reason it failed to state facts sufficient to constitute a cause of action. This demurrer was sustained and the appeal is from that ruling and judgment.

Facts as relied on by the parties might be related at length, or for that matter summarized, but by omission of their formal parts pertinent portions of the pleadings are so brief and to the point as to permit their inclusion in this opinion without undue prolongation and at the same time give to its readers a clear and concise word view of the picture in the language of its creators.

Since recital of some of its allegations is in the interest of clarity, and admissions of the defendant with respect thereto are important, we first turn to the petition. Paragraphs 2 and 3 read:

'2. That on or about the first day of March, 1943, the said defendant entered into the possession of the following described real property in Gray County, Kansas, to-wit: The South Half (S 1/2) of Section Eight (8), Township Twenty-seven (27), Range Thirty (30), as the farm tenant of one Otis McVaugh under the terms of a written lease, dated November 7, 1942, executed by said defendant and said Otis McVaugh, a copy of which is hereto attached, marked 'Exhibit A' and made a part hereof; that at the time of the execution of said lease and at the time said defendant entered into the possession of said premises as tenant aforesaid, said real estate was owned by one Violet McVaugh, wife of said Otis McVaugh, and that in making said lease, the said Otis McVaugh was the agent of said Violet McVaugh and was acting for her in making such lease.

'3. That subsequent to the time said defendant entered into the possession of said real estate as tenant aforesaid, said plaintiff purchased said real estate from said Violet McVaugh and that on or about the ___ day of January, 1944, the said Violet McVaugh, together with the said Otis McVaugh, her husband, conveyed said real estate to said plaintiff by warranty deed and that said plaintiff has ever since been and now is the absolute owner thereof and entitled to the rents therefrom; that said defendant was advised and informed of such change of ownership and thereafter continued in the possession and occupancy of said real estate as the tenant of said plaintiff.'

Exhibit 'A' referred to in paragraph 2 is an ordinary farm lease, the terms of which leased the land therein described for a period of one year from March 1, 1943, to March 1, 1944, and provided for the payment of crop rentals on a share basis. Its provisions make no mention of irrigation rights of any character, and of a certainty, do not purport even by inference, or otherwise, to grant defendant those claimed by him in his respective pleadings.

Other portions of the petition merely recite the amount of rent claimed by plaintiff to be due and payable for crops planted and harvested during the year 1944 and are of no consequence here. It should, however, be noted--although all pleadings are silent on the subject--that defendant, since plaintiff's claim involves only the landlord's share of the 1944 wheat crop, must have held over after expiration of the term provided for by the written lease.

We see no necessity for detailing the cross petition. Except for one paragraph, and another which under the issue raised by the demurrer is not material, its averments are the same as those which appear in the pleading filed by defendant after the original one was motioned.

Only a few allegations were added to the first paragraph of the amended cross petition. Those additions for identification purposes will be italicized. Thus the quotation which follows will disclose not only the averments to be found in the first paragraph of the cross petition as originally drafted but at the same time will reveal all allegations of the first paragraph of the cross petition as amended. Such paragraph reads:

'For his cross-petition the defendant alleges that he entered into possession of the land described in paragraph 2 of plaintiff's petition as alleged in said paragraph 2; that the plaintiff was the owner of land adjoining said described land in said lease and that the plaintiff and the said Otis McVaugh and Violet McVaugh had installed on plaintiff's land a pumping plant, and that said pumping plant was by oral agreement between said persons to be used jointly by said plaintiff and this defendant as tenant of McVaugh in the irrigation of the land described in the lease attached to plaintiff's petition; that under the terms of the said arrangement regarding said irrigation plant, this defendant was entitled to use said plant for irrigation purposes on his land one-half of the time during the irrigation season. That the exact date of said arrangement or agreement regarding the use of said plant is unknown to this defendant, but said date is well known to the plaintiff and is peculiarly within his knowledge. That the consideration therefor, was payment by the said McVaughs of one-half the cost and expense of the installation of said plant, said consideration having been fully paid and said agreement having been fully performed as shown by the records in the office of the Register of Deeds of Gray County, Kansas.' (Emphasis supplied.)

Inasmuch as defendant's rights depend primarily upon the facts and alleged by him in the paragraph just quoted there is no occasion to here relate or...