Crane v. Franklin

• Decision Date: 09 April 1915
• Docket Number: Civil 1432
• Parties: H. J. CRANE, Appellant, v. T. L. FRANKLIN, Appellee
• Court: Arizona Supreme Court

147 P. 718

16 Ariz. 501

H. J. CRANE, Appellant, v. T. L. FRANKLIN, Appellee

Civil No. 1432

Supreme Court of Arizona

April 9, 1915

APPEAL from a judgment of the Superior Court of the County of Yavapai. Frank O. Smith, Judge. Reversed and remanded.

STATEMENT OF FACTS BY THE COURT.

The appellee commenced this action to recover $1,402 for services rendered and supplies furnished appellant, at his instance and request, from December 5, 1912, to January 5, 1914. The defendant answered, denying generally and answering specially, alleging that the services were rendered and supplies furnished pursuant to a contract of lease of a ranch for one year, and alleging that said contract was fully performed. The plaintiff replied to the matters set forth in the answer. The defendant moved to strike the reply upon the grounds of a departure. The motion was overruled and defendant excepted.

A trial was had to a jury, resulting in a verdict for plaintiff in the sum of $540. The defendant moved for a new trial, in due time, upon the grounds that the court erred in denying defendant's motion to strike paragraph 2 of plaintiff's reply; in admitting and in rejecting evidence; in charging the jury as to the law; in refusing instructions requested by defendant; because the evidence does not sustain the verdict; because the verdict is contrary to the law and to the evidence; because the pleadings do not support the judgment; that a judgment cannot be founded upon the pleadings, for the reason the complaint and reply are inconsistent with each other, and, construed together, state facts which constitute no cause of action; and that the verdict is the result of passion and prejudice on the part of the jury, and the amount of the verdict is excessive and not sustained by the evidence. The motion was overruled and a new trial refused.

In due time defendant moved in arrest of judgment, assigning as grounds for the motion that the pleadings of the plaintiff consisting of the complaint and reply to defendant's special answer, considered together, do not state a cause of action upon which a judgment may be predicated, with other grounds not deemed important to be stated here. The court overruled the motion, and entered judgment for the plaintiff for $540, in accordance with the verdict. From the order refusing a new trial, and from the judgment, the defendant appeals. Other facts are stated in the opinion.

Messrs Anderson & Lamson, for Appellant.

Messrs Norris & Mitchell, for Appellee.

OPINION

CUNNINGHAM, J.

The plaintiff sues, upon an implied contract, to recover the reasonable value of services rendered and supplies furnished defendant at defendant's instance and request. The defendant pleaded a general denial; that is, he answered, denying the allegations of the complaint setting forth the cause of action. He answered specially, setting forth an express contract of lease of a ranch for a term of one year, entered into between plaintiff and defendant, and alleged that the services and supplies complained of were rendered and furnished by plaintiff pursuant to the covenants and agreements of said contract of lease, and that the contract of lease was fully performed by plaintiff and defendant before the commencement of this action.

The plaintiff replied to defendant's special answer, denying that plaintiff and defendant entered into a contract of lease for one year but alleged the facts to be that they entered into a verbal agreement for a lease for five years, and agreed "that the plaintiff should go to said ranch as soon as he could conveniently arrange his affairs and commence the work of cultivation upon said premises." It is alleged that plaintiff did go on the ranch on December 5, 1912, and commence the work of cultivating the premises, "and did continue the work of clearing, plowing and cultivating the said premises and the raising and harvesting of crops thereon, and did expend certain moneys, as alleged in the complaint herein, for the purchase of seed and other supplies, all with the full knowledge and acquiescence of the defendant. . . . " It is alleged that the defendant refused to grant plaintiff the lease for five years, containing the covenants and agreements understood by the parties, and that defendant repudiated the contract at the end of one year, and, on January 5, 1914, ejected plaintiff from the premises.

Appellant contends that the reply sets forth facts that constitute a department in pleading from the original cause of action set forth in the complaint, and that the court erred in refusing to strike out the reply for that reason, relying upon paragraph 424, Civil Code of 1913. The statute is as follows:

"It shall not be necessary for the plaintiff to deny any special matter of defense pleaded by the defendant, but the same shall be regarded as denied unless expressly admitted; but when the answer contains new matter the plaintiff may reply thereto, specifically denying each allegation controverted by him; and he may also allege, in ordinary and concise language, any new matter not inconsistent with the complaint constituting an answer to such new matter in the answer."

The answer of the defendant setting up a contract for a lease for one year, and its performance, is in legal effect an answer setting up a different contract from the contract sued upon, and is, if established, a complete defense to the action. Such an answer does not constitute an answer containing new matter, calling for a reply under the statute, supra. Simmons v. Green, 35 Ohio St. 104.

If the matter pleaded in the reply tends to support and justify the complaint, such matter is not a departure in pleading. Fanning v. Insurance Co., 37 Ohio St. 344; Shirts v. Irons, 47 Ind. 445; 9 Cyc. 747. The reply sets up a verbal agreement for leasing real estate for five years; an entry and occupation of the premises for one year; the rendering of services and furnishing of supplies by the lessee, during his occupancy of one year, in accordance with the terms of the verbal lease; and the termination of the occupancy by the lessor at the end of one year. These facts are asserted in the reply in support of, and as justifying, the recovery upon an implied promise to pay the reasonable worth of the services rendered and supplies furnished and not paid for.

A parol agreement for a lease of real estate for more than one year is void, under paragraph 3272, Civil Code of 1913. Taylor's Landlord & Tenant, ninth edition, volume 1, section 80, page 103, says:

"It has been held, and, apparently on sound reasons, that the mere fact that one goes into possession under a lease for more than one year, void under the statute of frauds, does not create a yearly tenancy, the lease vests no term whatever, and in the absence of any other agreement, express or implied, the tenancy is at will"; citing Reeder v. Sayre, 70 N.Y. 184, 26 Am. Rep. 567; Laughran v. Smith, 75 N.Y. 209, and Talamo v. Spitzmiller, 120 N.Y. 37, 17 Am. St. Rep. 607, 8 L.R.A. 221, 23 N.E. 980.

The plaintiff rendered services and furnished supplies under a contract void under the statute. The defendant exercised his undoubted right to terminate the tenancy at any time. Plaintiff alleges that defendant elected to terminate the tenancy at the end of one year and recovered possession. No recovery can be had on the contract, for the reason that it is void. No damages could be recovered for a breach of the contract, for the same reason, and, upon the same principle, the contract being void, the value of plaintiff's services rendered and supplies furnished cannot be concluded by its terms. Butcher Steel Works v. Atkinson, 68 Ill. 421, Wonsettler v. Lee, 40 Kan. 367, 19 P. 862, Brashear v. Rabenstein, 71 Kan. 455, 80 P. 950, Williams v. Bemis, 108 Mass. 91, 11 Am. Rep. 318, Browne on Statute of Frauds, 118, and many other authorities, support the rule.

In Browne on Statute of Frauds (cited in Butcher Steel Works v. Atkinson, supra) it is said:

"One who has rendered services in execution of a verbal contract, which, on account of the statute, cannot be enforced against the other party, can recover the value of the services upon a quantum meruit."

See, also, Shute v. Dorr, 5 Wend. (N.Y.) 204.

In the light of this rule, which is unquestionably sound in reason and justice, plaintiff's so-called reply stated only facts which tended to support and justify his complaint, and, when considered with the complaint, the facts stated become mere matters of inducement, not made the basis for recovery, and do not state a different or inconsistent cause of action. Therefore, the reply does not constitute a departure. The reply was unnecessary, and may have been properly stricken out for that reason, and still all the facts stated therein may have been received in evidence under the original complaint; but a refusal to strike unnecessary matters from a pleading is not, ordinarily, treated as reversible error, and the necessity to treat such refusal as reversible error does not appear in this record.

The appellant contends that the evidence fails to sustain the verdict, assigning a number of grounds as reasons for the error. We will not state them in detail, but will discuss the questions raised. The controlling issue for trial was whether the plaintiff rendered services and furnished supplies with the understanding that he would have the right to occupy and cultivate defendant's lands for five years, and at the end of one year, or a less time, defe...