Diven v. Johnson

• Decision Date: 06 March 1889
• Citation: 20 N.E. 428,117 Ind. 512
• Parties: Diven et al. v. Johnson.
• Court: Indiana Supreme Court

117 Ind. 512

20 N.E. 428

Diven et al.

v.Johnson.

Supreme Court of Indiana.

March 6, 1889.

Appeal from circuit court, Madison county; D. Moss, Judge.

Action for breach of contract, brought by Charles E. and William S. Diven against William H. Johnson. Judgment for defendant, and plaintiffs appeal.

Wm. S. Diven and H. D. Thompson, for appellants. Henry & Ryan, for appellee.

Olds, J.

On the 9th day of August, 1883, the appellants, Charles E. and William S. Diven, and the appellee, William H. Johnson, entered into a written contract, by which Diven & Diven leased to Johnson certain real estate situate in Madison county, described in the contract, for the term of one year from March 1, 1884, on the conditions stated in the contract, which are substantially as follows: Johnson to farm in good farmer-like manner all of the farm, and to put in such crops and kinds of grain as Diven & Diven may direct; to keep fence corners and along ditches mowed clear of weeds and bushes; to haul out all manure made on the farm as may be directed; to keep fences in good repair; and to deliver to Diven & Diven one-half of all products raised on the farm, in the bushel or mow, at a point not further distant than Pendleton; Johnson to put wheat in such ground as may be directed in autumn of 1883, on same terms as above stated; Johnson to clear underbrush out of orchards, trim trees, and cultivate the ground on same terms as stated; to have all apples not otherwise cared for made into cider, and the pomace cared for, so that the most vinegar can be gotten therefrom; Johnson to have for his share one-half of all other fruits. It is further agreed that each party to the contract shall furnish an equal amount of stock sufficient for the farm, and no stock shall be kept on the farm but partnership stock, except work-horses and milch-cows for use of the family, and such stock as Diven & Diven should keep on their reserved pasture; the stock to be cared for by Johnson from the products of the farm as may be most advantageous to their common interests; the proceeds from the stock to be divided equally, Johnson to have his fire-wood as directed by Diven & Diven, and not to cut any timber except as directed; Johnson to put up all clover and timothy, and to deliver to Diven & Diven one-half in mow, as directed; the stock pasture to be pastured in common or divided equally, as may be agreed upon, and Johnson to gather all corn, and to have all pastures ready for use in good season, not later than January 1st; stock to only be pastured when ground is frozen, and not later than March 1st, and, should wheat be sown on corn-ground, to be pastured only when snow is on the ground, and not later than February 1st; Johnson to have the house on the farm for his residence, and the barn on north side of turnpike, the said Diven & Diven reserving the barn on south side of turnpike for their own use. Diven & Diven to have the privilege at any time of entering any building or any part of the farm to make any improvements they may see fit on any of the buildings or grounds, and have the right to cut any wood or timber they may desire, and remove it at any time; Johnson to take good care of buildings, and keep them in as good repair as they are or may be put, and turn them over, without further notice, March 1, 1885; Diven & Diven to have the right to enter on land, and put in wheat, or have it done, on such ground as they desire, in autumn of 1884; Johnson to take no straw off the farm, and to cut sufficient fodder to feed all stock kept in common, and to mow fence corners and along ditches in July or August. It is further agreed that all crops and products shall remain the property of Diven & Diven until all conditions of the contract are fully performed.

The appellants, Diven & Diven, brought this suit against appellee, Johnson, alleging several causes of action. The complaint is in four paragraphs. The theory we take of this case is that it is only necessary to consider the fourth paragraph of the complaint, and the answer thereto. The fourth paragraph of the complaint declares upon the written contract, the terms of which we have stated, alleging a failure on the part of the appellee to farm the land in a good husbandman-like manner, and to mow the weeds and bush along the fences and ditches on the farm, and that damage has resulted to the appellants in the sum of $1,000.

The defendant files answer in five paragraphs. The fifth paragraph of answer is addressed to the fourth paragraph of complaint, and is as follows: “And for a fifth and further answer herein to the fourth paragraph of plaintiffs' complaint, defendant, by way of counter-claim or recoupment, says that at the date of the execution of the written contract sued upon in said paragraph, and as a part of the consideration for said contract, and in addition to the consideration stated therein, the plaintiffs entered into a parol agreement with the defendant, wherein and whereby they, the plaintiffs, stipulated and agreed with this defendant that they would ditch said real estate and land set out and described in said lease in a good and sufficient manner before the time for the planting of corn for the year 1884, and the time covered by said lease; that if said ditching had been done on said land as agreed upon said land would have been dry, and rendered much more susceptible of cultivation, and would have produced much larger and better crops than it would in the condition it was at the time and date of said lease and contract; but that said plaintiffs, wholly ignoring the said covenants, promises, and agreements, and wholly failing and refusing to so ditch said land as they agreed to, this defendant was unable to raise such crops on such land as he could have done had plaintiffs carried out their said agreement, and caused said land to be ditched, by reason of which facts, and the promises aforesaid, this defendant was damaged in the sum of $500, and he offers to recoup or set off against any amount that may be found due plaintiffs an...