Dobbs v. Atlas Elevator Co.
| Decision Date | 23 March 1910 |
| Citation | 25 S.D. 177,126 N.W. 250 |
| Parties | DOBBS v. ATLAS ELEVATOR CO. |
| Court | South Dakota Supreme Court |
OPINION TEXT STARTS HERE
On rehearing. Judgment below and order denying a new trial affirmed.
For former opinion, see 117 N. W. 128.
Haney, J., dissenting.H. G. Hundredmark and John R. Van Derlip, for appellant.
Hanten & Hanten, for respondent.
This cause was before this court and the judgment of the lower court reversed in an opinion to be found in 117 N. W. 128. Upon application of respondent rehearingwas granted, and the cause is now before this court on such rehearing. Plaintiff below, and respondent here, sought to recover from defendant $381.60, being the alleged value of certain grains, claimed to be owned by respondent, and which respondent claims defendant wrongfully and unlawfully converted to its own use. A verdict was rendered and judgment thereon entered in favor of plaintiff. Motion for new trial was overruled, and defendant brings the cause to this court alleging insufficiency of the evidence to sustain the verdict and also assigning various errors.
It appears from the record that on the 23d day of June, 1903, a written instrument was made purporting on its face to lease by N. J. Hunt to John W. Brennan the south half of section 7 and north half of section 18 in township 117 north, range 53 west, in Codington county, S. D., for the term of three years, commencing October 1, 1903, for which the said Brennan therein and thereby agreed to pay to said N. J. Hunt the sum of $950 per year, annual rent, payable on the 1st of October, 1904, 1905, and 1906, and which lease contract contained the further provision that the ownership and title of all crops raised on the said premises during the term of said lease should be and remain in the name of said N. J. Hunt, or assigns, until the said rent was paid and a written statement to that effect made and delivered. The said lease contract was signed by said John W. Brennan, and the name of N. J. Hunt was signed thereto by L. G. Dobbs, claiming to act as the agent of N. J. Hunt. Upon the making of said lease Brennan was put into possession of said premises under and by virtue of said lease, and that during the spring and summer of 1904 the said land was planted to crop by one William White, acting under said Brennan, and that Brennan also employed workmen in and about the caring for said crops. When said grain, being some 10,000 bushels of barley and oats, was threshed, it was in some manner divided between Brennan and White and sold at defendant's elevator, at Kampeska, part in the name of Brennan and part in the name of White. It also appears that L. G. Dobbs during the summer of 1904 also resided on said premises, and that during the summer and long before the threshing of any of said grain notified White of the terms of the lease under which Brennan held, and that all the grain to be grown on said premises under said lease was to be held for the payment of the rent. It also appears that on the 21st day of October, 1904, and while said crop was being delivered to defendant's said elevator, and prior to the delivery of and payment for a large portion thereof, the said Dobbs also notified and showed to defendant's said agent, in charge of said elevator, the conditions of said lease and informed said agent that the title to said grain was in N. J. Hunt and her assigns until the payment of said rent. It also appears that on the 13th day of October, 1904, the said N. J. Hunt executed and delivered to Nancy K. Dobbs, the plaintiff, a quitclaim deed of said premises, and that on the 27th day of October, 1904, the said N. J. Hunt signed and delivered to said L. G. Dobbs the following paper: It further appears that on the 27th day of November, 1904, the said N. J. Hunt by written instrument assigned all her right, title, and interest in and to or by virtue of said lease contract, and her right of action for the recovery of rents thereunder, to the plaintiff, Nancy K. Dobbs. It also appears that the said Brennan failed to pay $381.60 of said rent for the year 1904. Afterwards this action was instituted.
Appellant first contends that the evidence is insufficient to justify the verdict. On few of the material issues there was sharp conflict in the testimony. The verdict of the jury has settled all such conflicts in favor of plaintiff, and the case for our consideration stands substantially as above stated. We are of the opinion that the evidence was sufficient to sustain the verdict. On trial, when plaintiff offered the lease purporting to have been signed by John W. Brennan and N. J. Hunt in evidence, defendant objected to the same on the ground that it was incompetent, immaterial, and irrelevant, being an instrument between persons not parties to the action or in any way connected with it; that it is an instrument in the nature of a chattel mortgage and is not executed in accordance with the laws of the state of South Dakota; that the instrument is not acknowledged and does not prove itself; that it is immaterial because there is no proof of notice to the defendant of the contents of the instrument; that no foundation has been laid, in that, under the statute of frauds, this being an instrument purporting to be a lease, for more than one year, must be in writing, and, if signed by an agent, the authority of the agent must be in writing. The objection was overruled and exception taken by defendant. This ruling of the court is now assigned as error. We are of the opinion that the ruling was correct. It appeared from the evidence of subscribing witness Hanten that he was present at the time said instrument was executed and saw John W. Brennan sign the same, and that he saw L. G. Dobbs sign the name of N. J. Hunt thereto. The instrument is not a chattel mortgage, neither is it an instrument in the nature of a mortgage. McFadden v. Elevator Co., 118 N. W. 242. The clause therein that title to the crops raised under the said lease should remain in N. J. Hunt and her assigns until the rent was paid relates solely to the ownership of the crops and in no manner attempts to create a lien thereon. It is a provision frequently made in leases, and one which the parties had the right to make, whether the landlord received money or a share of the crop as rent. It was a matter subject to, and that might be varied by, the terms of the contract in accordance with the will of the parties. Land Co. v. Hawley, 7 S. D. 229, 63 N. W. 904;Baumann v. Jerome, 21 S. D. 42, 109 N. W. 513;Olson v. Ausdal, 13 S. D. 26, 82 N. W. 89; 24 Cyc. 1470.
It is further urged by appellant that the lease contract was not to be performed within one year...
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