Davis v. Cramer
| Decision Date | 03 May 1915 |
| Docket Number | No. 11245.,11245. |
| Parties | DAVIS v. CRAMER. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Andrew County; Alonzo D. Burnes, Judge.
Action by William F. Davis against William H. Cramer. From judgment for plaintiff, defendant appeals. Affirmed.
Frank Petree, of Oregon, Mo., and Cook, Cummins & Dawson, of Maryville, for appellant. Shinabargar, Blagg & Ellison, of Maryville, for respondent.
Appellant in 1907 contracted in writing to sell respondent his farm in Holt county, Mo., and also his share, as landlord, in the crop of that year which had been grown thereon by the tenant. The price of said farm and one-half its crop was $5,000, to be paid by October 1st. Thereafter, and within the specified time, the parties met and the money was paid. Appellant executed a deed conveying the land to respondent, and, as a part of the same transaction, signed and delivered to him a written instrument reciting that:
"Having sold to Mr. W. F. Davis my farm (describing it) I hereby assign to him, the said W. F. Davis, all of my right, title, and interest in and to all the rent that is due me for this year (being one-half the corn in the field) and is entitled to all my interest that I may have in the crop on the said farm."
But, when respondent went to get his onehalf of the crop, the tenant denied that he owed grain rent, and insisted that he was to pay in money the reasonable rental value of the farm for that year. It seems that the farm for several years previous had been overflowed by the Missouri river, and, as it was problematical what could be raised, the owner had agreed with the tenant that he should pay as rent whatever was right. This year it had produced an unusually heavy crop of corn, so that one-half of that crop was very valuable—much more than the reasonable and ordinary monetary rental value of the farm.
Being unable to get possession of one-half the crop which he had bought, respondent saw appellant about it, and the latter tried to convince the tenant that he had agreed to give one-half grain rent. He was unable to convince him, however, and finally, on November 29, 1907, appellant wrote respondent saying:
"I realize I sold you the farm in August, 1907, * * * and that I also assigned to, you all of my one-half interest in the corn crop, * * * and now I hereby notify you that I expect you to look after your interest in connection with the rent, etc."
Upon receiving this letter, respondent sued the tenant in two counts, one for one-half of the crop, and the other for the reasonable money rent of the farm. The tenant's contention that he did not owe one-half grain rent was upheld, but respondent recovered $190 money rent on the second count. Thereupon respondent brought this suit against appellant alleging that the reasonable value of one-half of the corn crop for 1907, the title to which appellant had warranted to him, was $900, and praying for the recovery of the difference between that amount and the $190 he did obtain. Upon a trial' the jury gave him a verdict of $632.20.
Appellant's main complaint is that the court erred in submitting to the jury the question whether the warranty contained in the assignment of the crop was a part of the respondent's contract of purchase. The theory of this Objection is that the purchase contract, while providing for the purchase of the farm, and also for the purchase of appellant's interest in the crop, contained no statement as to what that interest was, and hence contained no warranty, and that when the deed was executed in consummation of that contract it merged into it all antecedent terms and elements of the contract, and, unless a warranty of the vendor's title to the crop appears in the deed, no action can be based upon a warranty contained in any instrument outside thereof. The deed was not put in evidence, and, for aught we know, may have contained the element which appellant says must be in there to be effective.
The crop would not pass to the vendee merely by virtue of a deed to the farm because the possession of the farm was in a tenant whose possession continued long after the crop's maturity, and all the evidence shows the land was sold subject to the tenancy. We may therefore indulge in the presumption that a reservation concerning it was made in the deed. Consequently the crop did not pass to respondent as part of the realty. Farris v. Hamilton, 144 Mo. App. 177, 129 S. W. 256.
In addition to this, the crop in question was an annual crop, yearly planted and raised, belonging to the class known as fructus industriales, and was therefore capable of being treated as a personal chattel. Garth v. Caldwell, 72 Mo. 622, loc. cit. 627; Swafford v. Spratt, 93 Mo. App. 631, 67 S. W. 701; Glass v. Blazer Bros., 91 Mo. App. 564.
And the parties in making the original executory contract of sale treated the crop as such, and had considerable prior negotiations as to whether appellant should sell the crop or not. The original contract provided for the sale of two things: First, a farm, which was realty; second, an interest in a crop, which was personalty. These were clearly treated as separate articles of property. Such being the case, the execution of the deed conveying the realty would not be a full performance of the contract, and would not merge that part of the executory contract requiring the turning over of the other subject of purchase, to wit, the personalty. Wilson v. Wilson, 115 Mo. App. 641, loc. cit. 649, 92 S. W. 145. The original executory contract provided for the sale of these two different subjects of property. Afterwards when the parties met to close the trade a deed was executed to convey the land, and an assignment was made to transfer the title to the personalty, and in this written assignment it is expressly asserted that the vendor's title is an ownership of one-half of the corn. In such case the deed is not exclusive and all-comprehending, but the two instruments are but separate parts of one and the same transaction each operating in its own sphere, and neither trenching upon nor contradicting the other. Harbold v. Kuster, 44 Pa. 392; Shelby v. Chicago & Eastern Illinois R. Co., 143 Ill. 385, loc. cit. 398, 32 N. E. 438; Daty v. Sandusky Portland Cement Co., 91 N. E. 569; Lewis v. Curnutt, 130 Iowa, 423, 106 N. W. 914; Cooper v....
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