Cook-Reynolds Co. v. Wilson
| Decision Date | 26 April 1923 |
| Docket Number | 5138. |
| Citation | 214 P. 1104,67 Mont. 147 |
| Parties | COOK-REYNOLDS CO. v. WILSON. |
| Court | Montana Supreme Court |
Commissioner's Opinion.
Appeal from District Court, Fergus County; Rudolf Von Tobel, Judge.
Action by the Cook-Reynolds Company against Ed Wilson. Judgment for defendant on counterclaim, and plaintiff appeals. Reversed and remanded, with directions to dismiss complaint and counterclaim.
Belden & De Kalb and Merle C. Groene, all of Lewistown, for appellant.
E. K Cheadle and C. W. Buntin, both of Lewistown, for respondent.
In September, 1919, plaintiff, the Cook-Reynolds Company, a corporation, entered into a contract with defendant, Ed Wilson, purporting to lease to defendant certain lands therein described. At the time of the execution of the contract, there was a certain tract which was described in the instrument as "tract No. 3," and which had been theretofore cultivated by a former tenant of plaintiff, who had grown wheat thereon. Unknown to the parties to this action at the time of the execution of the contract, the harvesting of the former tenant had resulted in reseeding the land and in the spring of 1920 this seed germinated and resulted in a volunteer crop of wheat springing up on the tract. Plaintiff claimed the entire crop, and, upon the refusal of the defendant to permit it to harvest the crop this action was commenced to enjoin defendant from interfering with its harvesting operations. An injunction was issued, and while it was in effect plaintiff harvested and marketed the crop. Defendant answered, claiming a share of the crop according to the terms of the written contract, and pleaded a counterclaim for the value of his share. After reply, the cause came on for trial before the court sitting without a jury. Testimony was taken, findings of fact and conclusions were made, and an affirmative judgment was entered for defendant on his counterclaim for an amount found to be two-thirds of the net proceeds of the wheat. Plaintiff appeals from the judgment thus entered.
Among plaintiff's contentions is one to the effect that the alleged counterclaim was not a proper one in the action and that the court erred in entering judgment thereon. We are constrained to hold that this contention is correct. The counterclaim was not allowable for two reasons: (1) The action being for an injunction and the counterclaim seeking an affirmative judgment, the counterclaim did not in any manner tend to diminish or defeat plaintiff's recovery. That such is a requisite of a counterclaim is unequivocally stated in section 9138, Rev. Codes 1921. (2) The cause of action which defendant attempted to make the basis of the counterclaim was not in existence at the time of the commencement of the action. It must appear that the counterclaim was in existence and matured prior to the filing of the complaint. See Scott v. Wagoner, 48 Mont 536, 139 P. 454, L. R. A. 1916C, 491; Hammond v. Thompson, 54 Mont. 609, 173 P. 229. The entry of the affirmative judgment in this action was therefore erroneous.
On the other hand, we are confronted with the question of whether or not, in any event, plaintiff was entitled to recover. Plaintiff insists that the contract entered into between it and defendant was not a lease but a "cropping agreement," and under it defendant was only entitled to share in the crops specifically mentioned therein.
We do not so view the situation. The instrument stated that "for and in consideration of the rents and covenants * * * mentioned" the plaintiff "has demised, leased and farm let and does * * * demise, lease and farm let unto the" defendant certain lands therein described, including the entire tract from which the volunteer crop was harvested for a definite term. It was specified that certain work was to be done by defendant and certain crops were to be planted. In particular, it was specified that defendant was to plow and seed a 100-acre tract out of a larger tract designated as "tract No. 3" consisting of 231 acres. It was also agreed that, "in consideration of the aforesaid leasing," the defendant was to "deliver" to the plaintiff one-third of the grain crops grown on the "leased premises" during the season of 1920, and "in consideration of the aforesaid leasing deliver" one-half of the hay grown on the premises during the year 1920. Mention was made of a grazing lease between plaintiff and another which expired April 1, 1920, and notice was taken of that lease. It was also provided that defendant was to have the use and occupancy of all buildings except a garage, which was to be removed by plaintiff, and a stock shed, to the use of which the grazing leasee was entitled during his term. Certain provisions were made for repairs. There was an agreement to the effect that, if defendant did not cultivate the lands in accordance with the terms of the contract, plaintiff, at its election, could enter upon the premises and plow such lands as were not being so cultivated. Provision was made for proper farming and disposition of the crops. There was a paragraph which stated:
"That the ownership of all grain crops grown on the herein leased premises shall be and remain the property of the first party until the division of said crops is made by the parties hereto and the first party has received the share it is entitled to receive."
Permission was granted plaintiff to enter for the purpose of inspection....
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