Fry v. Weyen

• Decision Date: 23 July 1937
• Docket Number: 6388
• Citation: 70 P.2d 359,58 Idaho 181
• Parties: LOUESA FRY, Respondent, v. W. H. WEYEN, Appellant
• Court: Idaho Supreme Court

70 P.2d 359

58 Idaho 181

LOUESA FRY, Respondent, v. W. H. WEYEN, Appellant

No. 6388

Supreme Court of Idaho

July 23, 1937

LANDLORD AND TENANT-UNLAWFUL DETAINER-COUNTERCLAIM-STATUTE OF FRAUDS-PART PERFORMANCE.

1. Where tenant admitted, and record showed, that he had personally received notice from landlord to quit, supreme court would not pass on tenant's contention that notice was not served in accordance with statute. (I. C. A., sec 9-304.)

2. In action by landlord against tenant under oral crop share lease for unlawful detainer, tenant was not entitled to interpose defense of part performance, where tenant's answer did not set forth terms of lease, or defense of part performance by detailing facts or general terms, since it would have been impossible without knowing terms of lease, to determine what was part performance. (I. C. A., secs. 5-807, 16-503, 16-504.)

3. The doctrine of part performance of oral crop share lease of farm lands can be invoked by lessee to remove lease from operation of statute of frauds. (I. C. A., sec. 16-504.)

4. In action under statute by landlord against tenant under oral crop share lease of farm land for unlawful detainer, evidence of tenant as to improvements and repairs on property cultivation, and purchase of farm machinery was not admissible to show damages. (I. C. A., secs. 9-304, 16-503, 16-504.)

5. Damages cannot be litigated under a counterclaim or cross-complaint in unlawful detainer action. (I. C. A., sec 9-304.)

6. In action under statute by landlord against tenant under oral crop share lease of farm land for unlawful detainer adjudging that tenant was barred from asserting any lien or claim on land by virtue of oral lease was error, since damages cannot be litigated under counterclaim or cross-complaint in unlawful detainer action.

APPEAL from the District Court of the Second Judicial District, for Latah County. Hon. Gillies D. Hodge, Judge.

Action for unlawful detainer. Judgment for plaintiff. Affirmed as modified.

Judgment affirmed as modified.

Feeney, Belknap & McQuade, for Appellant.

Where a statute requires service and prescribes the manner of the service it must be strictly complied with. Section 9-304, I. C. A., provides for service of notice on the tenant personally and service by registered mail is not a sufficient compliance with this section. (Bancroft's Code Practice, 4161; 36 Corpus Juris, 616, 638; In re Stewart's Estate, 110 Ore. 408, 223 P. 727; Lowman v. West, 8 Wash. 355, 36 P. 258; 15 Cal. Jur. 814.)

Defendant in an unlawful detainer action is not limited to the defense that he was in quiet possession of the premises for one year before the commencement of the action. (Sec. 9-314, I. C. A.; Andersonian Inv. Co. v. Wade, 108 Wash. 373, 184 P. 327; Teater v. King, 35 Wash. 138, 76 P. 688; sec. 1172, Cal. Code Civ. Proc.; 15 Cal. Jur. 854.)

Defendant in an unlawful detainer action may assert the affirmative defense of part performance of an oral lease for more than one year. (36 Corpus Juris, 644; Himpel v. Lindgren, 159 Wash. 20, 291 P. 1085; Rowland v. Cook, 179 Wash. 604, 38 P.2d 224, 101 A. L. R. 180; Rogers v. Hackett, 49 Cal. 121; Burbank v. Kirby, 6 Idaho 210, 55 P. 295.)

A judgment of a court is limited to the issues as made out by the pleadings and the evidence and any portion of a judgment going outside those issues is beyond the jurisdiction of the court. (Sec. 7-704, I. C. A.; Shuler v. Allam, 45 Colo. 372, 101 P. 350; 14 Cal. Jur. 985.)

Murray Estes and Latham D. Moore, for Respondent.

Service by any person of a notice to quit is sufficient so long as the tenant receives the notice in time to allow him the statutory period to vacate. The same exactness is not required in the service of such a notice as in the serving of a summons where the statutes direct how the service shall be made. (Wilson v. City of Trenton, 53 N.J.L. 645, 23 A. 278, 16 L. R. A. 200; Hardebeck v. Hamilton, 268 F. 703, 50 App. D. C. 113.)

For a defendant in an action of ejectment to be entitled to relief by way of specific performance his answer or cross-complaint must allege sufficient facts which alone and standing by itself would sustain a bill in equity for specific performance. (Stockton v. Herron, 3 Idaho 581, 32 P. 257; Dixie Naval Stores Co. v. German-American Lumber Co., 76 Fla. 339, 79 So. 836; Bellevue Club v. Punte, 148 Md. 589, 129 A. 900.)

GIVENS, J. Morgan, C. J., and Ailshie, and Budge, JJ., concur.

OPINION

GIVENS, J.

--Respondent 's amended complaint alleged her ownership of certain real property, oral crop share lease thereof October 1, 1934, for three years to appellant; his occupancy of the premises during the crop season of 1935; service of notice in writing on him August 31, 1935, to deliver possession by October 1, 1935, and his subsequent refusal so to do, with prayer for eviction.

Appellant's answer admitted respondent's ownership and the lease; denies all the other allegations and under a denominated further, separate and affirmative defense as a cross-defendant alleges after reiterating that the lease was for three years, as follows:

". . . . that the plaintiff stated to defendant that he should go upon the said premises and occupy the same for a period of three years and that he should begin farming operations and that she would furnish him, at a later date, with a written copy of a lease; that thereupon defendant relying upon the representations of the plaintiff purchased additional equipment and supplies and made farming plans based upon a three year tenure of the premises; that on or about the first day of October, 1934, he entered upon said premises and took possession of the same and plowed, tilled, and seeded the premises in the fall of 1934 and during 1935 still continued to occupy and farm the said premises under and by virtue of the said lease; that the defendant during his occupancy has repaired fences on said premises and has spent much time, labor, and money in the conduct of farm operations and in carrying out and improving said premises; that the plaintiff made no attempt to annul or rescind said lease until about the month of August, 1935, and defendant continued to operate under said lease and is now and ever since has been willing to do so."

praying dismissal of respondent's complaint.

It is unnecessary to pass upon appellant's contention that the notice to quit was not served in accordance with the statute (I. C. A., sec. 9-304) as appellant admits and the record shows he personally received the notice August 31, 1935. ( Wilson v. City of Trenton, 53 N.J.L. 645, 23 A. 278, 16 L. R. A. 200; Alworth v. Gordon, 81 Minn. 445, 84 N.W. 454; Candler v. Mitchell, 119 Mich. 464, 78 N.W. 551; Hardebeck v. Hamilton, 268 F. 703, 50 App. D.C. 113; Ewing v. O'Malley, 108 Mo.App. 117, 82 S.W. 1087.)

It is respondent's theory that the lease being for more than one year and not being in writing, created the relationship of tenancy from year to year and it being agricultural lands, under the statute (I. C. A., secs, 16-503, 16-504) the landlord after 30 days' notice given prior to the expiration of the year, as it was, is entitled to repossession of the property sued for, in her action herein for unlawful detainer.

Appellant's present defense is asserted partial performance thereby taking the lease out of the operation of the statute under I. C. A., sec. 16-504, supra. In support of his position appellant relies on the following testimony: (Weyen on direct examination)

"A. Well, first I went and invested in a tractor and more machinery, and I went to work and everything--

"Mr. MOORE: Oh, we object to this Your Honor, as incompetent, irrelevant and immaterial. It is not within the issues.

"The COURT: The witness has perhaps exceeded the question.

"Mr. FEENEY: I think counsel's relief is to have it stricken.

"The COURT: He has a right to protect his record.

"A. Everything went along nice, and I farmed the place the whole year.

"Q: State what if anything you did about plowing during 1934?

"A. Well, I farmed practically the whole thing.

"Mr. ESTES: We object to this as incompetent, irrelevant and immaterial.

"The COURT: The defendant may show that he has had quiet possession of the premises for the space of one whole year before the commencement of the proceedings, and that will be the extent of the affirmative defense.

"Mr. FEENEY: In the absence of the jury, I want to make a tender.

(Jury admonished--excused.)

"The COURT: It having been shown and admitted that this period of possession was for less than one year, I don't know why we should have had a jury in here. I believe the court was in error in ruling as it did, to permit this evidence, and also not to act upon the motion, or acting as the court indicated first, for judgment on the pleadings, because the pleadings and the admission of the defendant here himself, clearly shows that it doesn't come under Sec. 9-314. I want you to have a ruling upon this so it will be clear and you will have an opportunity to take it to the appellate court.

"Mr FEENEY: You haven't ruled yet, Your Honor. The defendant tenders in evidence, and states that the defendant Weyen, if permitted to testify, would testify that he went upon these premises on or about October 3d or 4th, 1934, that he occupied said premises without complaint on the part of the landlord for a period up and to the time he was served with written notice to quit, and that during that time he farmed, plowed, tilled and seeded the premises in the fall of 1934--

"The COURT: What time in 1934?

"Mr FEENEY: In the fall of 1934. Further he will testify that he had repaired fences, spent considerable time and money in the repair of the fences, that he summer-fallowed...