Bert v. Rhodes

• Decision Date: 08 January 1924
• Docket Number: No. 17553.,17553.
• Parties: BERT v. RHODES et al.
• Court: Missouri Court of Appeals

258 S.W. 40

BERT v. RHODES et al.

No. 17553.

St. Louis Court of Appeals. Missouri.

January 8, 1924.

Rehearing Denied January 26, 1924.

Appeal from Circuit Court, Perry County; Peter H. Huck, Judge.

"Not to be officially published."

Action by Edward Bert against Edwara J. Rhodes and another, in which by her motion Georgia Killian was made party defendant. Judgment for defendants, and plaintiff appeals. Reversed and remanded.

Edward Robb, of Perryville, for appellant. Chas. A. Killian and Samuel Bond, both of Perryville, for respondents.

ALLEN, P. J.

On August 1, 1916, Edward J. Rhodes, Ralph R. Rhodes, and Georgia Rhodes (now Georgia Killian), being the owners of a farm in Bois-Brute township in Perry county, Mo., leased the same to the plaintiff herein, Edward Bert, for a term of five years. The lease, which is quite informally drawn, after providing for payment by the lessee of $750 per year as rent, $500 to be paid on or before August 1 of each year during the term, beginning August 1, 1917, and $250 on or before the 1st of the following March of each succeeding year, provides as follows:

"And it is further agreed that the party of the second part agrees to keep up and in repair all fences and outbuildings free of charge for labor, the parties of the first part furnishing the material for such repair. And it is further agreed by the parties of the first part that should any of said farm be overflowed so that no crop is grown so much of said land is exempt from rent."

Early in 1921, while plaintiff was in possession of the farm as such tenant, he instituted this action against Edward J. Rhodes and Ralph R. Rhodes, as defendants, returnable to the April term, 1921, of the circuit court of Perry county. The petition is in two counts. The first count alleges, in substance that on or about September 15, 1920, said defendants wrongfully, and against plaintiff's protests, entered upon the land and covered the dwelling house thereon with a new roof made of red shingles, by reason whereof the water in the cistern used by plaintiff and his family became red and was rendered unfit for use, to plaintiff's damage in the sum of $500. The second count of the petition charges, in substance, that on February 25, 1921, defendants wrongfully entered upon the land and over plaintiff's protests sowed clover seed in 30 acres of land upon which plaintiff then had growing wheat and in 15 acres which plaintiff had sowed in oats, to plaintiff's damage in the sum of $500.

The answer to the first count contains a general denial and alleges that there is a well-established custom in the neighborhood for the landlord to make all repairs except those agreed to be made by the lessee; that the roof of the house became decayed and leaky, and plaintiff notified Edward J. Rhodes thereof, and demanded that the lessors repair the same; that upon an inspection of the roof it was found that it would be necessary to provide a new roof, which was done, defendants using the best cedar shingles obtainable; that the cistern had water sufficient in it to supply plaintiff and his family for five months, and that the guttering from the roof was not connected with the cistern for about two months after the completion of the roof and until the roof had been thoroughly washed by rains.

The answer to the second count likewise contains a general denial, and alleges that when plaintiff went into possession of the farm 7 acres thereof were in alfalfa, and that plaintiff, without the consent of the lessors, plowed up the alfalfa in 1920, contrary to good husbandry and with damage to the inheritance; that in compromise of this matter it was agreed between the parties that the whole farm should be sowed in clover in 1920 and 1921; and that on February 25, defendants sowed clover in plaintiff's growing wheat and oats as alleged in the petition; it being necessary to do so "to keep up the fertility of the soil." This is followed by a counterclaim wherein it is alleged that plaintiff plowed up the grass and clover on said land, planted the land in corn, and, in the autumn of 1920 and spring of 1921, sowed all of the land in wheat and oats, thereby destroying the permanent grasses, destroying the rotation of crops, and impairing the fertility of the land, to defendants' damage in the sum of $1,000.

The reply is conventional.

At the return term, viz. on April 11, 1921, Georgia Killian filed her motion to be made a party defendant, and the court made her a party defendant over plaintiff's objections. Thereupon plaintiff undertook to dismiss the action as to Georgia Killian, but the court refused to allow him so to do. Plaintiff thereupon moved the court to strike out certain portions of the answer and all of the counterclaim, which motion was denied. To these rulings plaintiff duly preserved his exceptions. Thereafter, at said term, the cause was tried, resulting in a verdict in favor of defendants on both counts of the petition and for the defendants on their counterclaim, assessing the damages on the counterclaim, however, at "no dollars," and finding plaintiff "guilty of waste and that the same was wantonly committed." From a judgment entered on this verdict the plaintiff has appealed.

Plaintiff's testimony, in substance, is that early in 1920 he asked defendants for some shingles with which to patch the roof of the dwelling house, and that some repairs were made thereto in April of that year. He denied that he made any further request for repairs to the roof, and testified that he objected to the putting on of the new roof in September of that year and vigorously protested against the same. And his further testimony is that the roof was not then leaking and would have kept the house dry until the end of the term and longer. The testimony of defendant Edward J. Rhodes is that in the spring of 1920 plaintiff requested that the roof be repaired, and that in August of that year this defendant brought 1,000 shingles with which to repair the roof, but, finding that the shingles and sheathing of the roof were badly decayed, and that a new roof was necessary, he stored the shingles, with plaintiff's consent, in the cellar on the premises, and in September, 1920, he, with certain employes of defendants, put on the new roof: He admitted that plaintiff, at the time, objected thereto and protested against the same, but that nevertheless defendants proceeded to put on the new roof. Such is likewise other testimony in defendant's behalf.

From the testimony in plaintiff's behalf it appears that, while the water from the new roof was not turned into the cistern for some weeks, it caused the water therein to become red and to have a bad taste, and plaintiff was compelled to haul water and to have his family washing done elsewhere; though the testimony is indefinite as to the damages thereby sustained.

As to the second count, the testimony for plaintiff goes to show that when, in February, 1921, defendant Edward J. Rhodes with some employes of defendants began sowing clover on the lands which plaintiff had in wheat and on that in which he had sowed oats, plaintiff appeared upon the scene and vigorously protested against the same, but that said defendant, in a threatening manner, declined to desist therefrom, and that he and defendants' employes proceeded with the sowing of the clover, though plaintiff threatened suit. Touching this matter the testimony for defendants likewise shows that plaintiff protested against the sowing of the clover seed, but that defendant Edward. J. Rhodes insisted that plaintiff had given defendants permission so to do. Plaintiff denied that he had given such permission. In this connection the evidence shows that about August 1, 1920, a controversy arose between plaintiff and defendants as to the amount Of rent due, plaintiff tendering...