Chleboun v. Varilek
| Decision Date | 21 July 1965 |
| Docket Number | No. 10188,10188 |
| Citation | 81 S.D. 421,136 N.W.2d 348 |
| Parties | Bessie C. CHLEBOUN, Plaintiff and Appellant, v. Robert E. VARILEK, Mildred Varilek and Ed Varilek, Defendants and Respondents. |
| Court | South Dakota Supreme Court |
G. F. Johnson, Gregory, Maule, Maule & Day, Winner, for plaintiff and appellant.
No appearance for defendants and respondents.
This is an action to determine adverse claims to real estate.
Plaintiff alleges that she is the owner in fee simple and entitled to the immediate possession of a described farm in Tripp County, South Dakota. Defendants answer that the husband of the plaintiff, acting as her agent and with her full knowledge and consent leased the property to them for a period of five years. They further assert that because of her conduct she is estopped to deny the lease. The jury returned a verdict finding in favor of the defendants and against the plaintiff on all of the issues. Plaintiff appeals from the judgment of dismissal entered on such verdict.
On June 9, 1962 the husband of the plaintiff and all of the defendants, they being a husband, his wife, and their eldest son, executed a written agreement. It designated plaintiff's husband as the landlord and the defendants as the operator. After stating that the landowner was the owner of the premises involved, including the buildings and improvements thereon, and certain described livestock and farm machinery the agreement goes on to state that the parties are entering into a joint venture for the operation of the farm and ranch unit involved. It then provides in detail concerning their contributions to and receipts from the joint operation of the premises. The agreement is for the term of five years commencing March 1, 1962. The landlord reserved for the use of his family a dwelling house on the premises and the operator was given the use of the tenant house thereon for his living quarters.
Plaintiff's principal complaint on this appeal is that the evidence is insufficient to sustain the verdict. In our review we must accept the evidence most favorable to the verdict.
When the agreement was entered into plaintiff was 82 years of age and her husband 83. Both were suffering the physical infirmities common to persons of their age group because of which they had been unable to operate the farm for some time without help. It had been their home and means of livelihood throughout their long married life during which both of them worked together in its operation. The year before the lease period in question, August Severin had assisted them in their farming and ranching activities. The written agreement that he operated under was identical with the one given the defendants. It too was executed by plaintiff's husband and stated that he was the owner of the premises. However, its term was one year.
The Severin lease expired with no new agreement with him and apparently no arrangements made with anyone else to take over. In these circumstances the defendant, Ed Varilek, was directed to the Chleboun farm by the Employment Service at Winner. Severin was still living in the tenant house, but did not work on the place. Varilek, with his son Robert and Chleboun, in the presence of the plaintiff, discussed the possibility of Varilek assisting them in the operation of the farm. The Varileks in the course of this discussion read over the Severin agreement. They observed that it was for a one-year term and inquired if the Chlebouns would consider making it for three or five years. To this Chleboun replied 'No, we make it for one year with the privilege of renewing every year.'
The next day the Varileks, including Mrs. Varilek, returned to the farm and further discussions were had concerning the agreement and especially about the Chlebouns assisting the Varileks financially to acquire some livestock to keep on the place while they operated it. Mrs. Varilek indicated her assent to moving to the farm, but nothing was said in these conversations, in the presence of the plaintiff, as to the duration of the contract. Two days later, about March 17, 1962, Varilek returned to the farm with his tractor and farmhand and began doing chores on the farm. He lived with the Chlebouns in the dwelling house reserved to the landlord until his family moved to the farm after school was out. The family consisted of Mr. and Mrs. Varilek and their eight children.
While living with the Chlebouns, Varilek had a conversation with Chleboun in the presence of the plaintiff concerning the contract, but 'there wasn't too much said as to the duration at that time.' A little later while having breakfast with the Chlebouns they discussed the matter of entering into a written contract. He was asked by Mr. Chleboun what the advantage would be in a three or five-year contract. To this he replied 'Well, if we had a contract for longer period of time the kids and the missus and I would run it like it was our own place and it would be beneficial for him and us both.' To this Chleboun replied 'they would talk it over.'
Plaintiff admitted that her husband pretty much ran their farming business. She indicated that they generally talked things over, but that he made the decisions and put on the land the people that he wanted on. This seems to have been their long continued practice. She further admitted that in 1962 he talked it over with her about Mr. and Mrs. Ed Varilek.
Concerning the lease in issue the record next shows that Chleboun took a copy of the Severin agreement to an insurance and real estate office in Winner and had the new lease typed by a stenographer there, with the principal change being to extend the term from one to five years. It was typed in accordance with instructions received from Mr. Chleboun. He admitted that it embodied the arrangements they had orally agreed on in their previous discussions and that he and his wife had discussed entering into this written agreement.
Varilek stated that on an occasion before the lease was signed Chleboun told him that plaintiff was the owner of the premises, but coupled it with the statement that 'he was the manager of the whole...
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