Boley v. Butterfield

• Decision Date: 09 December 1920
• Docket Number: 3519
• Citation: Boley v. Butterfield, 57 Utah 262, 194 P. 128 (Utah 1920)
• Court: Utah Supreme Court
• Parties: BOLEY et al. v. BUTTERFIELD

194 P. 128

57 Utah 262

BOLEY et al. v. BUTTERFIELD

No. 3519

Supreme Court of Utah

December 9, 1920

Appeal from District Court, Third District, Salt Lake County; Wilson McCarthy, Judge.

Action by W. C. Boley and another, doing business as Boley &amp Stevens, against T. A. Butterfield.Judgment for plaintiffs and defendant appeals.

AFFIRMED.

Adam Duncan, of Salt Lake City, for appellant.

Martineau & Evans, of Salt Lake City, for respondents.

THURMANJ. CORFMAN, C. J., and FRICK, WEBER, and GIDEON, JJ., concur.

OPINION

THURMAN, J.

Plaintiffs' complaint in substance alleges that on the 24th day of May, 1918, plaintiffs and defendant entered into a certain agreement in writing termed "a grazing lease," whereby plaintiffs agreed to lease a grazing permit upon certain land described in the lease to defendant for a band of sheep belonging to and in possession of defendant, for which lease defendant agreed to pay the sum of $ 1,500; that said lease was delivered to defendant, who entered upon the land with his sheep, and had the benefit thereof during the period covered by the lease; that the sum of $ 750 was paid thereon by defendant at the time of the execution of the lease and the balance of $ 750 should have been paid on or before the 1st day of September, 1918, but the same was not paid, and plaintiffs demand judgment for said amount and interest thereon.

The lease or instrument referred to is made part of the complaint, and reads as follows:

"Grazing Lease.

"This agreement made and entered into this 24th day of May, 1918, by and between H. H. Stevens of Salt Lake City, Utah and W. C. Boley of Am. Fork, Utah parties of the first part, and T. A. Butterfield of Riverton, Utah party of the second part, as follows: Witnesseth: That the parties of the first part hereby agree to lease a grazing permit to the party of the second part for a band of sheep belonging to and now in the possession of the party of the second part which band shall not be increased in numbers during the life of this lease which is written to cover the summer grazing period of the year 1918, the lease to be in force, in and upon the lands known as Kaysville Land & Live Stock Co. grazing land located in the Hardscrabble district, north and east of Salt Lake City, Utah.

"The consideration of the above lease is that the party of the second part hereby agrees as follows: That the sum of fifteen hundred dollars ($ 1,500.00) for the season, of which seven hundred and fifty dollars is in hand paid and receipt acknowledged by the parties of the first part, and seven hundred and fifty dollars shall be paid on or before the first day of September, 1918.

"In witness whereof the parties hereunto have this day affixed their signatures unto and accepted all of the conditions and obligations of the above written lease this 24th day of May 1918."

Defendant in his answer admits the execution of the lease, and alleges that in consideration of the use and possession of said land during the grazing season of 1918, which he alleges was from June 1st to November 1st of said year, he agreed to pay plaintiffs the sum of $ 1,500; that at the time the lease was executed he paid plaintiffs thereon the sum of $ 750; that the balance was to have been paid on September 1st the same year, but that he was not paid the same.

Defendant denies the remaining allegations of the complaint, and alleges in substance that the reason he has not paid the balance of the amount stipulated is because when he entered upon the land with his sheep he found it already occupied by other parties, who were grazing 4,300 head of sheep thereon; that plaintiffs, prior to the execution of the lease to defendant, had leased the same lands to said other parties for the purpose of grazing their sheep thereon during the same season; that for this reason defendant alleges he was prevented from occupying said land, except that he obtained a scrambling possession of a small portion thereof, amounting to about two sections, which he occupied with his sheep from about June 9th to August 15th; that for the aforesaid reasons he was compelled to take his sheep from said land and rent land elsewhere at considerable expense during the remainder of the season.

In addition to the above matters alleged as a defense to the action, defendant counterclaims upon substantially the same facts, and alleges that he was damaged in the sum of $ 1,250: (1) Because the $ 750 payment already made was $ 450 more than the reasonable rental value of the land he was able to occupy and use; and (2) because he was compelled to rent from other parties grazing privileges during the same season at a cost of $ 800.

Plaintiffs replied to the answer and counterclaim, and among other things alleged, in substance, that prior to the execution of the lease to defendantthey had executed a grazing permit upon said lands to other parties to graze 4,300 head of sheep, and that said parties had that number of sheep upon the land; that said grazing permit to said other parties was known to defendant at the time the lease sued upon was executed, and that plaintiffs had explicitly informed defendant of that fact, and that the lease to him was subject to such prior permit; also that he(defendant) could not have an exclusive grazing permit upon said land.Other matters are alleged in the reply relating to the same subject-matter, but the foregoing is sufficient in order to determine the issues involved.

Defendant moved to strike from the reply the affirmative matter above alleged, upon the ground that such matter is inconsistent with the complaint; that the complaint pleads an express contract in writing, and sets out said contract in full, without any modification, and pleads a breach thereof, whereas the matters sought to be stricken out materially modify said contract and materially alter its terms.As further grounds for his motion, defendant alleges that if plaintiffs are permitted to set up said matter in their reply, and the same is permitted to stand, defendant will be precluded from pleading a defense thereto, he having had no opportunity to plead the same.

The motion to strike was denied.The case was tried to the court without a jury.Plaintiffs introduced their evidence in chief and rested.Defendant introduced evidence tending to prove his answer and counterclaim, including the fact that other parties were grazing sheep upon the land under a prior lease or permit from the plaintiffs, after which plaintiffs, over defendant's objection, were permitted to introduce testimony tending to prove the matters alleged in their reply.The court found the issues in favor of the plaintiffs and judgment was accordingly entered.

Defendant by this appeal, seeks to reverse the judgment, and assigns as error the ruling of the court denying defendant's motion to strike the portions of the reply...