Frazier v. Riley

Decision Date16 December 1926
Docket Number4 Div. 299
Citation111 So. 10,215 Ala. 517
PartiesFRAZIER v. RILEY et al.
CourtAlabama Supreme Court

Rehearing Denied with Modification Jan. 22, 1926

Appeal from Circuit Court, Covington County; W.L. Parks, Judge.

Action by J.D. and W.E. Riley against W.L. Frazier. Judgment for plaintiffs, and defendant appeals. Affirmed.

In action for rent, attachment being issued, plea denying indebtedness to be justly due held demurrable, since not denying grounds upon which attachment was issued (Code 1923, § 6212).

On December 27, 1920, appellees leased, in writing, to appellant, a farm in Covington county, Ala., containing 600 acres, more or less, for a period of 5 years, beginning January 1, 1921, and expiring December 31, 1925, for an annual rental of $1,500, to be paid on the 1st day of November of each year.

Under the terms of the lease, appellees were to furnish all materials to keep the houses on the place in a reasonable state of repair, and also agreed that they would, on or before October 1, 1921, complete a fence all around the outside of the farm sufficient to hold hogs and cattle; they also agreed that they would furnish and provide material for two cross-fences on the farm, the work to be done by lessee. Appellant, who was the lessee, agreed that during the term of the lease he would keep all the lands properly terraced maintain all the terraces then on the place, provide others where needed, and, at the expiration of the lease, would return possession of the premises to lessors with the lands in as good state of cultivation and houses in as good state of repair as when he took possession at the commencement of the lease, usual wear and tear and damage from fire excepted. He also agreed to keep all houses and fences in a reasonable state of repair during the term of the lease without cost to lessors, except they should furnish material for such repair.

On September 26, 1923, appellees sued out an attachment for the purpose of collecting rent which was due November 1, 1923 alleging in the affidavit that the defendant Frazier had removed from the rented premises, or otherwise disposed of, a part of the crop grown thereon without paying the rent and without the consent of the landlord, and that there was good cause to believe that the defendant was about to remove from the premises, or otherwise dispose of, a part of the crop, or all of it, without paying the rent and without the consent of the landlord. The amount claimed in this affidavit was $1,250. On February 8, 1926, the affidavit was amended so as to claim the sum of $1,500, and setting out the statutory grounds for suing out the attachment. A writ of attachment was issued September 26, 1923, and levied on certain parts of the crop. A complaint was duly filed in the case on January 9, 1924. This complaint was afterwards amended on February 8 1926. On October 18, 1923, defendant filed the following pleas:

"(1) Defendant alleges that the rental contract between the plaintiffs and defendant, upon which plaintiffs base their right to maintain said attachment, expressly provides that the rent which is the basis of plaintiffs' demand is payable on November 1, 1923. Defendant alleges, moreover, that said contract expressly provides that plaintiffs shall have as security for said rent a lien upon all crops and emblements raised and produced upon the said premises during the term of the said lease, and that said lien may be enforced upon the nonpayment of the rent by taking and sale of said property as in cases of chattel mortgages on default thereof, said sale to be made on 6 days' notice. Defendant alleges that the provisions in said contract, providing for the manner of enforcing the said lien, precludes plaintiffs from enforcing said lien by attachment as they seek to do in this case, wherefore defendant alleges that said attachment ought to be dissolved.
"(2) Defendant adopts all of the first plea hereinabove set out down to and including the words 'six days' notice' as they appear in said plea, and adds thereto the following: Defendant alleges that the said provisions of said contract postpone plaintiffs' right to enforce the said lien by attachment unless and until there has been default in the payment of the said rent when the same falls due under the said rental contract, wherefore defendant says that the attachment in this case should be dissolved or abated.
"(3) Defendant denies that the alleged indebtedness, the basis of the attachment, is justly due, as alleged in the plaintiffs' affidavit, but on the contrary he avers that the rent, the basis of plaintiffs' demand, if any be due, will not be due until, to wit, November 1, 1923. Defendant therefore puts in issue the alleged grounds of attachment, and avers that said attachment should be dissolved or abated."

Appellees demurred to these pleas. The judgment entry recites:

"Court, after having heard and considered the demurrers to the defendant's pleas and having considered the same, it is therefore ordered by the court that the demurrers be, and the same is hereby, sustained."

Appellant's first assignment of error is as follows:

"The trial court erred in sustaining plaintiffs' demurrers to the defendant's pleas." The defendant pleaded in short by consent with leave to give in evidence any matter that might be specially pleaded, including set-off and recoupment, with like leave to plaintiff to reply.

On the trial, defendant, on cross-examination, propounded this question to one of the plaintiffs, "And what was the purpose of building this fence around--" Being interrupted by objection interposed by plaintiffs, which was sustained by the court, defendant's counsel stated to the court:

"We offer to show, your honor, that it was talked over between the parties at the time that this contract was made with Mr. Frazier, that this defendant was leasing this place for a stock farm, and that it was talked over between them there, and that that was the purpose-- that he wanted this agreement on the part of the lessor, that he was to do this repair work there in the way of fencing, and we offer to show that."

Plaintiffs' objection to this offered testimony was sustained.

Defendant propounded to his witness these questions, plaintiffs' objections to which were sustained:

"Now, Mr. Frazier, with the fence on the outside of this farm suitable for holding hogs and cattle, would that place have been suitable for a stock farm?" and "Well could you raise stock there with the fences in the condition that it was in?"

There was verdict and judgment in favor of plaintiffs for $1,519, from which defendant has appealed.

Powell & Reid, of Andalusia, for appellant.

Powell & Albritton, of Andalusia, for appellees.

THOMAS J.

The ruling on question of fact that is insisted upon as error is whether the appellant was entitled to show the diminished rental value of the premises by reason of the alleged breach of the landlord's covenant to repair.

In this connection it is insisted that the rulings of the trial court were to restrict the damages to moneys expended in and about the repairs the tenant made on the fences, and that resulting from depredation of stock, and from the escape of the appellant's stock by reason of the failure of fencing.

The subject of covenants as to the sale of lands was fully discussed in Lowery v. May, 213 Ala. 66, 104 So. 5.

It has been declared that the lessee might show an oral agreement by the lessor to repair only when a part of the contract was in writing; for examble, "a unilateral contract, where it was merely a promise by the lessee to pay rent." This, however, does not permit the oral contradiction of the contract which is reduced to writing and is in itself complete. Vandegrift v. Abbott, 75 Ala. 487; Murphy v. Farley, 124 Ala. 279, 27 So. 442; Formby v. Williams, 203 Ala. 14, 81 So. 682; 25 A.L.R. 809, 849. It follows from these and other authorities that, where the writing is not unilateral and not partially in writing, and as it is reduced to writing is free from ambiguity (that is within the rule), and the written lease deals with the subject, and the question is not as to a trade fixture, parol evidence may not be permitted to vary or explain the written contract. 25 A.L.R. 808, 849; Pierce v. Tidwell, 81 Ala. 299, 2 So. 15; Formby v. Williams, 203 Ala. 14, 81 So. 682; Middleton v. Ala. Power Co. 196 Ala. 1, 71 So. 461; Nave v. Berry, 22 Ala. 382.

It is further declared that the covenant by the lessor to repair being ordinarily independent of the covenant of the lessee to pay rent, the breach of the former covenant cannot be relied upon as a bar to an action for rent. Tyson v. Weil, 169 Ala. 558, 53 So. 912, Ann.Cas.1912B, 350. In Hill v. Bishop, 2 Ala. 320, it was declared by this court as early as 1841 that:

"When the defendant covenants
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8 cases
  • Adler v. Miller
    • United States
    • Alabama Supreme Court
    • 7 d4 Junho d4 1928
    ... ... Coleman, supra, has been cited with approval ... in the more recent decisions in Byars v. James, 208 ... Ala. 390, 393, 94 So. 536, and Frazier v. Riley, 215 ... Ala. 517, 520, 111 So. 10, and there is analogy in Mudd ... v. Gray, 200 Ala. 92, 75 So. 468 ... In the ... ...
  • Darnall v. Day
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    ... ... Sullivan, 300 Mass. 450, 15 N.E.2d 476, ... 116 A.L.R. 1223; Richard Paul, Inc., v. Union Improvement ... Co., D.C., 59 F.Supp. 252; Frazier v. Riley, 215 Ala. 517, ... 111 So. 10; Magee v. Indiana Business College, 89 Ind.App ... 640, 166 N.E. 607; Banister Real Estate Co. v. Edwards, ... ...
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    ...Enos v. Foster, 155 Cal.App.2d 152, 155, 317 P.2d 670.) This is the generally accepted rule. (Rest., Contracts, sec. 290; Frazier v. Riley, 215 Ala. 517, 111 So. 10, 12; Masser v. London Operating Co., 106 Fla. 474, 145 So. 72, 79, 83; Brady v. Brady, 140 Md. 403, 117 A. 882, 884; Stone v. ......
  • Ex parte Windsor Highlands Co.
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    ... ... issue by way of abatement of the writ of garnishment. Such a ... plea is one in bar of the main suit and seeks to defeat ... recovery. Frazier v. Riley, 215 Ala. 517(6), 111 So ... Writs ... All the ... ...
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