Drinkard v. Anderton

• Decision Date: 07 January 1926
• Docket Number: (No. 282.)<SMALL><SUP>*</SUP></SMALL&gt
• Parties: DRINKARD v. ANDERTON.
• Court: Texas Court of Appeals

280 S.W. 1076

DRINKARD v. ANDERTON.

(No. 282.)^*

Court of Civil Appeals of Texas. Waco.

January 7, 1926.

Rehearing Denied February 18, 1926.

Appeal from District Court, Limestone County; J. R. Bell, Judge.

Suit by Ed W. Drinkard against J. P. Anderton, in which defendant filed a cross-action. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

A. J. Harper, of Dallas, and W. T. Jackson, of Groesbeck, for appellant.

Reed & Cannon, of Groesbeck, and S. J. T. Smith, of Waco, for appellee.

GALLAGHER, C. J.

Appellant, Ed W. Drinkard, instituted this suit on January 1, 1925, in form of trespass to try title to recover 88 acres of land from appellee, J. P. Anderton. Appellee had occupied the premises sued for as a tenant of appellant during the year 1924, and claimed a rental contract thereon for the year 1925. Appellant had theretofore demanded possession of said premises, and appellee had refused to surrender the same. Appellant, on January 2, 1925, sued out a writ of sequestration, and had the same executed and appellee evicted from said premises. Appellee was unable to give a replevy bond. He secured another farm in the vicinity, to which he moved, and which he was occupying and cultivating at the time of the trial of this case. This farm was known as the Rowell place. It was not as large as as the Drinkard farm, and the soil was inferior and less productive. He answered herein, and by cross-action alleged his rental contract for the year 1925, breach thereof by his eviction under said writ of sequestration, and asked for both actual and exemplary damages. There was a trial before a jury on March 13, 1925. The court, upon the verdict returned by the jury, entered judgment in favor of appellant against appellee for the title and possession of the land sued for, and against appellant in favor of appellee on his cross-action for damages in the sum of $847.48. Said judgment is presented for review by this appeal.

Appellant contends that the evidence is insufficient to show a valid and enforceable contract between appellant and appellee for the renting of the premises sued for for the year 1925. Appellee occupied the premises involved in this suit during the year 1923 as a tenant under Mrs. A. Drinkard, who then owned the same. He paid as rent one-fourth of the cotton and one-third of the other crops raised. These were the customary terms of rental of farms in that neighborhood. Some time during the year 1923, appellee rented said premises for the year 1924. This contract was made between appellee and Levi Drinkard, agent for the owner. Thereafter Mrs. Drinkard conveyed said land to appellant. Levi Drinkard then introduced appellant to appellee as his new landlord, and appellant confirmed the rental contract for the year 1924. Appellee testified in that connection that appellant assured him that he could stay on the place as long as he worked it faithfully and paid the rent, and that, when he wanted the place, he would give him ample notice. Appellee further testified that in May, 1924, appellant came to the farm and arranged for appellee to do some work in the way of improving the same, and that on that occasion he asked appellant if he was going to let him stay there in 1925, and that appellant said, "Yes." He further testified that he had no other conversation with appellant about renting the place. That this identical language was used by appellee and appellant, respectively, was corroborated by other witnesses. Nothing more specific as to terms and conditions was shown. Appellant denied that any such question was asked on that occasion, and that any such answer was made thereto by him. The jury found that appellant promised and agreed with appellee to rent the land in question to him for the year 1925.

The gist of appellant's argument on this contention is that, in the absence of evidence of a specific agreement with reference to the rental to be paid by appellee for the use of the land for said year, there was no binding or enforceable contract shown. Appellee was in possession of the premises, occupying and cultivating the same on the "third and fourth," which were the customary terms of rental for farm lands in that neighborhood. Neither party in the conversation testified to by appellee raised any question with reference to other or different terms for the coming year. As a general rule, a tenant holding over with the consent of the landlord is presumed to hold on the same terms as stipulated in the original contract, and the terms of such contract with reference to the amount of rent and the time and manner of paying the same apply. 16 R. C. L. p. 1161, § 682. The facts of this case on this issue are very like the facts in the case of Rupert v. Swindle (Tex. Civ. App.) 212 S. W. 671, 672. We quote from the opinion of the court in that case as follows:

"We are of the opinion that the evidence was sufficient to sustain the finding of an express contract of rental between Rupert and Swindle. While it is true that the evidence did not show any specific agreement between the parties with respect to the kind of crops that would be planted upon the land, nor the amount of rentals that would be paid therefor by Swindle, but, in the absence of such testimony, the usual custom of the country would determine such questions, and besides, according to Swindle's testimony, Rupert inquired of him what rentals he had been paying to Rea for the previous year, and, upon receiving the information desired, immediately told Swindle that he might have the farm for another year, thus implying his assent to the rental upon the same terms."

Appellant's said contention is overruled.

Appellant complains of the measure of damages submitted by the court in his charge to the jury. Said charge was substantially as follows:

"If you find for the defendant, Anderton, on this issue, the measure of his actual damages, would be the market value at this time of three-fourths of the cotton which defendant would be reasonably expected to raise upon said premises during the year 1925 and the market value of two-thirds of the corn and grain, sorghum, and hay which defendant would be reasonably expected to raise on said premises during said year, * * * less the cost of making, gathering, and marketing said crop, and also less such amount as defendant would be reasonably expected to earn or by the use of reasonable diligence he might earn by planting and cultivating similar crops on the Rowell farm occupied by him during said year."

Appellant seasonably objected to said charge on various grounds, one of which was that the market value at the time of trial (March 13th) of the crops which appellee would be reasonably expected to raise on the rented premises during said year was not the proper measure of damage.

Where there is a breach of a contract for rental of land "on the halves" and an eviction of the tenant from the rented premises, our Supreme Court has held that the tenant's damage is to be ascertained by finding the value of his contract to him, or, in other words, the pecuniary benefits which would have accrued to him had he been allowed to fully perform it. That court has further held that, where the tenant bases his claim for damages on the value of his stipulated share of the crops which he might be reasonably expected to have raised on the rented premises, the proper measure of his damage is such value, less all necessary expenses which he might be reasonably expected to have incurred in planting, cultivating, gathering, and marketing such crops, and less such further sum as he may be reasonably expected, in the exercise of ordinary diligence, to realize by otherwise employing his labor and the labor of the members of his family which he would have employed on such crops. Crews v. Cortez, 113 S. W. 533, 102 Tex. 111, 116, 118, 38 L. R. A. (N. S.) 713; Rogers v. McGuffey, 74 S. W. 753, 96 Tex. 565, 567. The rule so announced by the Supreme Court has been followed and applied by the Courts of Civil Appeals in such cases. Brooks v. Davis, 148 S. W. 1107, 1108; Smith v. Milam, 143 S. W. 293; Bost v. McCrea, 172 S. W. 561, 564; Brincefield v. Allen, 60 S. W. 1010, 25 Tex....