Carlson v. Bain

• Decision Date: 16 June 1947
• Docket Number: 15554.
• Parties: CARLSON v. BAIN.
• Court: Colorado Supreme Court

182 P.2d 909

116 Colo. 526

CARLSON v. BAIN.

No. 15554.

Supreme Court of Colorado, in Department.

June 16, 1947

Error to District Court, Morgan County; Arlington Taylor, Judge.

Action by John Bain against Mrs. C. A. Carlson to recover damages for defendant's failure to deliver to plaintiff possession of ranch property owned by defendant and leased to plaintiff. To review a judgment for plaintiff, defendant brings error.

Affirmed.

Chas E. Friend, of Denver, for plaintiff in error.

McDougal & Oakes, of Denver, for defendant in error.

ALTER Justice.

In the district court John Bain, defendant in error here, was plaintiff, and Mrs. C. A. Carlson, plaintiff in error here was defendant. We will refer to the parties as plaintiff and defendant.

Plaintiff brought an action in which he sought damages from defendant for her failure to deliver him possession of ranch property owned by her and leased to him. The trial was to the court without the intervention of a jury, at the conclusion of which, judgment in the sum of $2,500 was entered in favor of plaintiff. To review this judgment defendant is here by writ of error.

The complaint contained two causes of action, in the first of which plaintiff alleged that defendant is the owner of ranch property in Morgan county; that he and defendant 'entered into a binding oral agreement whereby she agreed for a valuable consideration to lease to the plaintiff said ranch which is commonly referred to as the 'Girardo Ranch' or 'Home Place' for an annual consideration of $1,800. That under said contract of lease the plaintiff was to have possession of said premises on or about the 15th day of February, 1944.' He then alleged defendant's violation of the lease agreement by refusing to deliver possession to him and entering into a lease agreement with another. Plaintiff alleged actual damages on account of moneys expended in preparing to enter into possession of the leased premises in the sum of $500, and $10,000 for loss of net earnings and profits which he allegedly would have made by operation of the ranch or farm property.

Defendant answered, admitting ownership of the farm or ranch property and denying all other allegations in the complaint. She further alleged that the oral lease agreement was contrary to, and violated the provisions of, sections 6 and 8, chapter 71, '35 C.S.A., which is the chapter on 'frauds and perjuries.'

At the trial held on April 27, 1944, resulting in a judgment entered on June 2, 1944, plaintiff announced that since the lapse of time made it impractical to do so, he was not relying upon specific performance as alleged in his second cause of action.

The sufficiency of the complaint is very doubtful, and had it been questioned by motion or by proper objection at the trial, it would have presented a serious question for our determination.

There are nine specifications of points, with subparagraphs therein presenting 34 instances in which defendant asserts that the trial court committed error. These specifications and subparagraphs thereof present but two questions: First, did plaintiff and defendant enter into a valid and enforcible lease agreement? and, if so, second, were actual and special damages proven for which judgment was authorized?

1. We have heretofore expressed doubt as to the legal sufficiency of the complaint, the reasons for which, however, under the circumstances here presented, are wholly immaterial. We have said that 'Under the authorities, to create a vaild contract of lease but few points of mutual agreement are necessary; First, there must be a definite agreement as to the extent and bounds of the property leased; second, a definite and agreed term; and, third, a definite and agreed price of rental, and the time and manner of payment. These appear to be the only essentials; * * *' Cochrane v. Justice Mining Co., 16 Colo. 415, 418, 26 P. 780. In the instant case, competent evidence was introduced showing: A definite agreement as to the property in question; a term fixed at one year; and an agreed rental of $1,800, one half of which was to be paid at the time possession was delivered, the other half to be due and payable six months thereafter, all of which evidence was received without objection.

The sufficiency of the complaint was not attacked by motion or otherwise. Although the evidence was not in entire accord, there was sufficient which, if believed by the court, justified its finding that plaintiff and defendant had entered into a valid lease agreement and that defendant had breached the agreement. The evidence offered by plaintiff was such as would, under our supplanted Code of Civil Procedure, have required an amendment of the complaint if permission to amend was granted by the trial court. As above stated, there was no objection to this evidence by defendant, in view of which situation all possible defects in the allegations of the complaint were overcome. No amendment of the complaint to conform to the evidence was made, and under rule 15(b), R.C.P.Colo., none was necessary. Toy v. Rogers, 114 Colo. 432, 165 P.2d 1017, and cases therein cited. This cause was presented to the trial court, and evidence in support thereof received, upon the theory that the complaint stated a cause of action and that actual and special damages were properly pleaded. There being competent evidence to support the findings and conclusion of the trial court that a valid lease agreement had been executed by the parties, they will not be disturbed.

2. The trial court found that the valid and enforcible oral lease between plaintiff and defendant had been breached by defendant because of her refusal to deliver possession of the ranch or farm property, as a result of which breach plaintiff had suffered damages in the sum of $500 actual and $3800 special damages. The evidence upon which the court based its findings as to damages was undisputed and, as hereinBefore stated, no objection thereto was made by defendant. Defendant takes the position here that no special damages could be awarded plaintiff by reason of a deficiency in the complaint, and because special damages were not pleaded as required by rule 9(g), R.C.P.Colo. Assuming the insufficiency of the complaint and considering the failure of plaintiff to specifically state the items of special damages as required by rule 9(g), supra, nevertheless defendant was not prejudiced thereby. We call attention to rule 15(b) R.C.P.Colo., which provides, 'When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure so to amend does not affect the result of a trial of these issues. * * *' The case was originally commenced in the Denver district court, and the only motion appearing in the record was one for change of venue filed by defendant and granted. As we construe rule 15(b), supra, in the absence of motions or objections, any issue that the parties see fit to present may be considered and determined by the trial court, and, in the absence of motion or objection, when an issue not pleaded is thus presented, the pleadings become functus officio, and the parties are Before the court to present such matter as they desire. This it must be admitted, is a complete departure from our supplanted Code of Procedure and makes it unnecessary under such circumstances to properly plead an issue as was formerly required.

The record considered, the trial court was authorized to consider actual and special damages and to enter its judgment for such amount as the evidence warranted.

Defendant strenuously contends that error was committed in considering and awarding damages based on anticipated net profits to be realized from crops which were to be planted, grown and harvested in the future, insisting that damages under such circumstances are too uncertain, speculative, contingent and prospective to be recoverable.

It is difficult to announce a proper rule to be used in instances such as here presented, where the landlord refuses to deliver possession of farm lands to his tenant...