Duffy v. Johnson

• Decision Date: 01 April 1919
• Docket Number: 1915
• Citation: Duffy v. Johnson, 42 N.D. 93, 172 N.W. 237 (N.D. 1919)
• Court: North Dakota Supreme Court

172 N.W. 237

42 N.D. 93

JAMES J. DUFFY, Respondent, v. SEVERIN JOHNSON, Appellant

No. 1915

Supreme Court of North Dakota

April 1, 1919

Appeal from the District Court of Ward County, K. E. Leighton, J.

Affirmed.

Judgment affirmed, with statutory costs on appeal.

Johnson & Meilke and Greenleaf, Wooledge, & Lesk, for appellant.

McGee & Goss, for respondent.

GRACE J. CHRISTIANSON, J., dissenting.

OPINION

GRACE, J.

This is an action by the plaintiff against the defendant to recover damages for the violation of certain terms of an oral lease of certain land and personal property. The undisputed facts or as substantially proved by the evidence, are as follows: The defendant was the owner of a certain farm in McLean county, North Dakota. In the fall of 1916, the plaintiff and the defendant entered into a contract by the terms of which the plaintiff leased defendant's farm on shares for the farming season of 1917. Under the terms of the lease, the defendant was to furnish the plaintiff with ten head of horses for use on the defendant's farm. The plaintiff claims that the horses were to be furnished also for use on other places and farms as plaintiff might see fit to use to work the same for himself and others.

This contention finds ample support in the evidence. Plaintiff fully performed his agreement with defendant with reference to farming the land which he leased from the defendant. Plaintiff, during the harvest season of 1917, undertook the performance of and did perform certain labor for other parties in which he desired to use the defendant's horses, which, under the terms of the oral lease, he had a perfect right to do. At the time he was about to enter upon the performance of such work with such horses, he was notified by defendant not to take the horses off the defendant's farm. Plaintiff insisted on taking the horses and performing such work for other parties. Thereupon the defendant commenced an action in claim and delivery, and the sheriff, executing the writ therein, took the possession of the horses in question from plaintiff on the 25th day of August, 1917, and during the time when plaintiff was using said horses in cutting grain for one Bondley. Thereafter the plaintiff rebonded and said horses were returned to defendant. After the return of the horses to plaintiff, the defendant again notified him not to take the horses off defendant's farm. At the time defendant by the sheriff took the possession of the horses from plaintiff, the plaintiff procured other horses to do the work which he was doing for other parties, for the use and feed of which he had to pay, as shown by the testimony. After the return of defendant's horses to the plaintiff and after the second notice by defendant to plaintiff not to take the horses off defendant's farm, plaintiff did not do so, but left the horses upon the defendant's farm, and fed and took care of them, and did not work them, but hired and used other horses to do the work for other parties, who were Bondley, and also for a party by the name of Dale. The plaintiff and one Gage had also rented from one Dale other land to the amount of about 400 acres. All of this work was outside of and exclusive of the work done upon defendant's farm in pursuance of the terms of the oral lease. The plaintiff also claimed $ 140 for the use of a new header which he bought and used in harvesting the crop upon the land he leased from the defendant.

The terms of the lease were that d...