Colorado Nat. Bank v. Ashcraft

Decision Date19 December 1927
Docket Number11815.
Citation263 P. 23,83 Colo. 136
PartiesCOLORADO NAT. BANK et al. v. ASHCRAFT.
CourtColorado Supreme Court

Rehearing Denied Jan. 9, 1928.

Department 2.

Error to District Court, City and County of Denver; George F Dunklee, Judge.

Action by R. W. Ashcraft against S.C. Osmer, the Colorado National Bank, executor, and Lucy J. Osmer, executrix, being substituted as parties defendant upon the death of S.C Osmer. Judgment for plaintiff, and defendants bring error.

Affirmed.

Pierpont Fuller, of Denver, for plaintiffs in error.

B. A Gates, of Denver, for defendant in error.

BUTLER J.

Ashcraft, the defendant in error, obtained a judgment against S.C. Osmer. After suing out a writ of error, Osmer died, and the Colorado National Bank, as executor of his will, and Lucy J. Osmer, as executrix thereof, were substituted as plaintiffs in error.

Osmer leased to Ashcraft for two years a dry farm near Sedalia. Ashcraft alleges that Osmer refused to permit him to enter into possession, and that Ashcraft has been damaged. Osmer denies such refusal and such damage, and alleges that Ashcraft abandoned, surrendered and relinquished the lease, and forfeited all his rights in the leased premises. These allegations Ashcraft denies.

1. It would serve no useful purpose to detail the evidence bearing on the affirmative defenses. The jury found for Ashcraft on these issues, and there was evidence sufficient to support such findings.

2. Complaint is made of the refusal of the trial court to give Osmer's requested instructions numbered 6 and 7. These instructions, in effect, declare it to be the duty of Ashcraft to take possession of the premises 'immediately' after the execution of the lease, and that his failure to do so was an abandonment of the premises and justified Osmer in taking possession and leasing the premises to others. In the circumstances disclosed by the record, no such duty rested upon Ashcraft. There was no error in refusing to give the requested instructions. Osmer did not tender any request correctly stating the law on this subject.

3. The giving of instruction No. 2 is assigned as error. The instruction is as follows:

'If you find from a preponderance of the evidence in this case that plaintiff's failure to move onto said leased premises for four months after the execution of the lease was not voluntary on his part, but was caused by weather conditions, or other conditions over which he had no control, and that he intended to move onto said premises as quickly as conditions would permit, you will find that he was not guilty of either abandonment, relinquishment or surrender of said lease.'

The lease was for the purpose of farming dry land. The rent to be paid was not cash, but a share of the crops. The lease was made November 16, 1925. There was evidence tending to show that that winter was a hard one. Testifying on behalf of Osmer, his agent, McCracken, said that that winter 'was one of the hardest winters we had in that country for years; * * * the most snowfall we had in a number of years.' This we found in the transcript of the record; it is not in the abstract. Agnes Bolejack testified that she moved on the premises in January, and that 'we had no put six horses on a truck and make a road to get up there.' This is copied from the transcript of the record. In the abstract the latter part appears thus: 'We had six horses on a truck, and made a road to get up there.' Ashcraft testified that after the lease was made, he went back to his farm near Matheson, sold his farm and such farm machinery and stuff as he did not need on the Osmer farm, and was ready to move any time the weather would permit; that not until March did the weather permit, but that in the meantime Osmer rented the farm to the witness Agnes Bolejack for a cash rental. The witness Stees testified that he has a farm adjoining the Osmer ranch; that he went to his farm during the last of November or the first of December; that it was pretty nearly impossible to get anywhere, the snow was so deep; that he did not do any farming until May 1st; that the ground was not fit for farming, it was too wet; that he does not know what a man could have done in the way of farming in March or in the first part of April in that country; that the snow was on until late in April.

There was no error in giving instruction No. 2. It stated the law applicable to the facts.

4. Instruction No. 3, which the court gave to the jury, is said to be erroneous. The first part is as follows:

'You are instructed that if you find for the plaintiff in this action, you may assess his damages in any sum, not however, exceeding the sum of $2,170; and in arriving at the amount of damages you may consider the difference, if you find any, between the rent which plaintiff would have to have paid defendant, and the probable return or [on?] crops which plaintiff could have raised on said premises, deducting therefrom the necessary expense of producing such crops.'

The latter part relates to special damages. The objection to this instruction, made to the trial court, follows:

'The defendant excepts to the giving of instruction No. 3 for the reason that the question of damages to be awarded to the plaintiff, if any, should be confined to the reasonable value of the lease as a leasehold, and the permitting of the jury to find any special damages is contrary to the law with reference to such matters.'

The latter part of the objection did not call the trial court's attention to any specific item of special damages and claim that it is objectionable. Supreme Court rule 7; Schwalbe v. Postle, 80 Colo. 1, 249 P. 495; Sandner v. Temmer, 81 Colo. 57, 253 P. 400; Koontz v. People (Colo.) 263 P. 19. This part of the objection is based upon the broad proposition that it was error to permit the jury to find 'any' special damages. This is untenable. 36 C.J. p. 57; Cauble v. Hanson (Tex.Civ.App.) 224 S.W. 922; Driggs v. Dwight, 17 Wend. (N.Y.) 71, 31 Am.Dec. 283.

As to the first part of the objection: It is true that the reasonable value of the lease--i. e., the reasonable value of the premises for the term--is what the lessee ordinarily is entitled to recover as damages where the lessor refuses to permit him to enter into possession. But there are various ways of determining such reasonable value. If such leases were bought and sold in the market, as are stocks and bonds one familiar with such market value could testify thereto. But leases of dry farms in Colorado are not so disposed of. If the court instructed the jury that the measure of damages is the reasonable value of the lease, and stopped there, the jury would have received little or no assistance in this case. Sometimes lost profits may be considered in determining...

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