Armer v. Nagels
| Decision Date | 04 March 1939 |
| Docket Number | 34140. |
| Citation | 149 Kan. 409,87 P.2d 574 |
| Parties | ARMER v. NAGELS. |
| Court | Kansas Supreme Court |
Syllabus by the Court.
In action by tenant against landlord for destroying crop of barley, in which tenant claimed interest, by plowing it under, instruction that, if tenant planted barley in fall and, after landlord notified tenant to vacate premises, it was orally agreed that tenant could return and harvest barley and retain his tenant's share, landlord was estopped to deny tenant's interest in barley, unless in spring barley was not of sufficient quality to warrant leaving it stand was not erroneous.
Instructions must all be read together.
In action by tenant against landlord for destroying crop of barley, in which tenant claimed interest, by plowing it under in spring, measure of damage was value of barley at time it was plowed up.
Alleged error in instruction on damages was immaterial, where no complaint was made of amount of damages allowed.
Defendant was not entitled to new trial on account of newly discovered evidence, where the evidence was all cumulative and impeaching.
Defendant was not entitled to new trial on account of alleged false answers by juror on voir dire, where alleged falsity was not clearly made to appear.
In an action for damages on account of the destruction of a crop of barley, the record is examined and it is held that no error appears therein.
Appeal from District Court, Pottawatomie County; Lloyde Morris Judge.
Action by G. W. Armer against Leon Nagels to recover damages for destruction of a crop of barley. From a judgment in favor of the plaintiff, the defendant appeals.
Judgment affirmed.
Hall Smith, Joe H. Eresch, John M. Eresch, and Frank P. Eresch all of Topeka, for appellant.
A Harry Crane and Ward D. Martin, both of Topeka, for appellee.
This was an action to recover damages for the destruction of a crop of barley in which plaintiff claimed an interest. Judgment was for the plaintiff. Defendant appeals.
The action grew out of a transaction alleged to have occurred between plaintiff and defendant with reference to a lease of a quarter section of farm land.
The petition alleged that plaintiff and defendant entered into a written lease for the farm in question on August 15, 1933, whereby plaintiff agreed to deliver defendant two-fifths of the small grain raised on the place at the grainary, and plaintiff was to keep three-fifths of the grain thus raised for the tenant's share, and that in case of a sale and the lessor desiring possession of the farm defendant agreed to pay plaintiff the fair and reasonable value of the growing crops. The petition then alleged that by operation of law and agreement of the parties this lease became the contract between them for the years commencing March 1, 1935, 1936 and 1937; that plaintiff planted barley in 1935 and 1936, gave defendant two-fifths of the grain, and kept three-fifths for himself; that in the fall of 1936, plaintiff planted eighteen acres of barley.
The petition further alleged that on or about the first of January, 1937, defendant notified plaintiff that he desired possession of the farm on March 1, 1937; that in a conversation plaintiff requested defendant to compensate him for the wheat and barley plaintiff had planted, and that it was orally agreed between plaintiff and defendant that the wheat and barley should remain the property of the plaintiff and he should return when the crops were mature and harvest them upon the share basis set out in the lease; that it was further agreed that if the barley froze out the defendant or his tenant might plow it up.
The petition then alleged that the barley came through the winter and made a good stand but that notwithstanding this defendant plowed it up and planted corn on the land; that had this barley not been plowed up it would have matured and produced forty bushels to the acre as to seventeen acres of it; that barley was worth one dollar a bushel and the cost of harvesting it would have been three dollars an acre.
The petition then alleged that plaintiff had been damaged by the loss of three-fifths of this barley or 408 bushels; that it was worth one dollar a bushel and the cost of harvesting and delivering two-fifths of it to defendant would have amounted to $51.25; that plaintiff had been damaged in the amount of $356.75. Judgment was prayed for in this amount.
The answer was a general denial, as was the reply.
The jury returned a verdict for $275. After a motion for a new trial was overruled judgment was rendered in that amount. One of the grounds for which a new trial was asked was newly discovered evidence.
At the hearing of the motion for a new trial several affidavits were submitted. Two of these affidavits referred to the testimony of one Russell Ballentine given at the trial. Ballentine had testified that he had planted three acres of barley in the fall of 1936 and it had yielded about ninety-six bushels of grain. These two affidavits were to the effect that the barley about which Ballentine testified had really been planted in the spring of 1937 rather than the fall of 1936.
Another of the grounds for the new trial was that false answers were given by the jurors which misled the defendant as to the competency of the jurors. Affidavits were furnished at the time of the hearing of the motion for a new trial to the effect that juror Enlow had answered falsely when he was asked on his voir dire examination whether a suit had been filed against him in that court where counsel for defendant were the attorneys. It was stated in the affidavit that the answer of Enlow to this had been "No, sir," and that as a matter of fact there had been an action filed in the justice court of the county against Enlow in which counsel for defendant had been attorney for the plaintiff. With reference to this affidavit, the juror made an affidavit that counsel did not ask him if the firm of counsel had ever been attorney against him in a case and that had counsel asked him such a question he would have answered "Yes." He also stated in the affidavit that he tried the case on the merits as he saw them from the evidence.
The motion for a new trial was overruled.
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