Cramer v. Nelson

• Decision Date: 27 January 1908
• Citation: 128 Mo. App. 393,107 S.W. 450
• Parties: CRAMER v. NELSON.
• Court: Missouri Court of Appeals

107 S.W. 450

128 Mo. App. 393

CRAMER v. NELSON.

Kansas City Court of Appeals. Missouri.

January 27, 1908.

1. TRIAL — INSTRUCTIONS — INVADING PROVINCE OF JURY — ASSUMING ADMITTED FACTS.

In an action by a landlord for grain rent under a lease, which provided that the landlord should have one-half the corn raised, and, if the tenant sowed any oats, the landlord should have corn raised on an equal amount of land selected in lieu of the oat land, the corn to be divided "in the crib," where both parties admitted that the lease was supplemented by a subsequent oral agreement providing that the corn should be divided and delivered by placing it on the ground in separate piles, an instruction that plaintiff admits that he agreed to accept the corn piled on the ground, and, if defendant piled one-half of all the corn raised on the place and all the corn from the land in lieu of the oat land in plaintiff's pile, it was a sufficient delivery to plaintiff, was not erroneous because holding as a matter of law that the lease had been changed by oral agreement, but the court might assume the existence of the admitted facts.

2. LANDLORD AND TENANT — ACTION FOR RENT — INSTRUCTIONS.

In an action by a landlord against his tenant for grain rent, where defendant claimed that in gathering the corn it was agreed that the corn was to be gathered from alternate sections of 16 rows for each party, and plaintiff denied it, the court by charging that if defendant

did not set over to plaintiff one-half of the corn grown on the farm, etc., did not declare as a matter of law that the division was to be made in the field as claimed by defendant.

3. TRIAL — INSTRUCTIONS — MISLEADING INSTRUCTION — DISCRETION OF COURT.

The court may properly refuse to give an instruction containing the unexplained expressions "burden of proof," or "preponderance of evidence," and with equal propriety may give such instruction in cases where it does not clearly appear that it might tend to confuse or mislead the jury.

4. EVIDENCE — HEARSAY.

In an action by a landlord against a tenant for grain rent, evidence that corn sold by the landlord from the pile allotted to him in dividing the crop brought a lower price than the tenant received for his was inadmissible to show that the quality of the corn put in the landlord's pile was poorer than that reserved by the tenant for himself, where it did not appear that the landlord knew the price the tenant received, except from what the purchasers told him.

Appeal from Circuit Court, Buchanan County; H. M. Ramey, Judge.

Action by John A. Cramer against Richard H. Nelson. Judgment for defendant, and plaintiff appeals. Affirmed.

John F. Imel and G. L. Zwick, for appellant. J. W. Mytton, for respondent.

JOHNSON, J.

Action by a landlord against his tenant to recover rent alleged to be due and unpaid. A writ of attachment was sued out in aid of the action and levied on property of defendant. A plea in abatement and answer were filed, which put at issue the ground of attachment and the merits of the case. By agreement of parties, the issues tendered by the plea and answer were tried together before a jury. Verdict and judgment were in favor of defendant, and plaintiff appealed.

On March 1, 1903, defendant entered into possession of a farm owned by plaintiff situated in the Missouri river bottom in Buchanan county, under the terms of a written lease which provided that defendant should occupy the land for a term of one year, "with the privilege of releasing said farm at the same rent as stated in this lease." The farm contained about 500 acres. A large part of it was in pasture. Some of it had been formed by accretion from the river, and was of little practical value. The lease required defendant to farm the remainder, approximately 200 acres, and to pay as rent for the whole farm "one half of all grain in the crib, corn in the crib, all small grain in the measure or the bin." Further, it was stipulated "there shall not be more than thirty acres in oats, but there shall be thirty acres oats and the balance in corn whatever there shall remain." Defendant raised crops that year, in due season delivered to plaintiff his proportion thereof, and the parties agreed that the tenancy should continue for another year under the terms and conditions of the lease, with the following exception: It was agreed that corn should be the principal crop grown, that there should be no division of any other crop, and that, if defendant raised other crops, plaintiff should receive corn from an acreage equal to that employed in raising such other crops. According to the testimony of defendant, he raised corn that year on about 160 acres, oats on 20 acres, potatoes on 1 acre, and used 1 acre for garden. He states, and is supported in the statement by other evidence, that the corn crop produced about 2,200 bushels, and that he delivered to plaintiff his part thereof. The evidence introduced by plaintiff is to the effect that corn was grown on 215 acres, that 3,800 bushels were produced, and that only 431 bushels were delivered to him as rent for that year. He claims in his petition and in his testimony that defendant is indebted to him "to the amount of 1,500 bushels of corn, of the reasonable value of $750." These issues of fact which were sharply contested were settled by the jury in favor of the contention of defendant, and it is not claimed by plaintiff that the verdict was not supported by substantial evidence. The errors assigned relate to the rejection by the trial court of evidence offered by plaintiff and to the instructions given to the jury.

The court refused all of the instructions asked by plaintiff, and of its own motion gave instructions in his behalf. The first of these was as follows: "It is admitted in this case that defendant occupied the farm mentioned in evidence, and that defendant was to pay as rental for said farm one-half of all the corn raised on said place and all the corn raised on an equal amount of land selected in lieu of the oat land, and if you believe from the evidence that the defendant did not set over to plaintiff one-half of the corn grown on said farm by defendant, and all the corn grown on the land in lieu of the oat land, and that there is now due plaintiff any corn on account of said rent, and that plaintiff before bringing this suit demanded the same, you will find for the plaintiff on the merits of this case, and assess his damages at whatever amount you may find is the market value of said corn, not to exceed 50 cents...