Gibbons v. Huntsinger

• Decision Date: 07 December 1937
• Docket Number: 7712.
• Citation: 74 P.2d 443,105 Mont. 562
• Parties: GIBBONS v. HUNTSINGER.
• Court: Montana Supreme Court

74 P.2d 443

105 Mont. 562

GIBBONS v. HUNTSINGER.

No. 7712.

Supreme Court of Montana

December 7, 1937

Appeal from District Court, Pondera County, Ninth District; R. M Hattersley, Judge.

01,74 P.2d Action by Jennie Gibbons against Jack Huntsinger. From a judgment for plaintiff, the defendant appeals.

Affirmed.

David J. Ryan, of Great Falls, for appellant.

W. E Arnot and D. W. Doyle, both of Conrad, for respondent.

MORRIS Justice.

In June 1934, the parties to this controversy entered into an agreement, evidenced by a written contract, by which the defendant entered upon the lands involved for the purpose of preparing the fields for seeding the following year and farming the same for a specified part of the crop. It does not appear that any disagreement arose about the relationship between the parties in the year 1935. The written contract later adverted to provided it should terminate December 1 1935, that defendant would without notice vacate the premises, and further provided that the contract could not be altered or renewed without indorsement thereon in writing signed by both parties. Notwithstanding such renewal provision, it was subsequently verbally agreed that the defendant should continue farming the lands for the year 1936, under the provisions of the written lease for the prior season. August 29, 1936, plaintiff served notice upon the defendant in writing to vacate the premises within three days after service of such notice, alleging the lease was terminated by breach of the defendant, and specifying a number of covenants of the written lease that defendant had violated to the injury of the plaintiff, setting out the amount of the alleged injury in each instance, aggregating $1,300, for which damages were prayed in treble the amount as provided, for "occupation, unlawful detention and holding out of same." Judgment is also prayed for in the sum of $500 for the rents and profits of the land, for costs of suit, and for a restraining order restraining the defendant from farming the premises during the pendency of the action.

Upon filing the complaint, April 5, 1937, it appears that a restraining order and an order to show cause were issued as prayed for, the latter made returnable April 19. Neither of these orders appears in the record. Defendant filed his answer April 10, and at the same time gave notice of and filed a motion to dissolve the restraining order.

Some disagreement arose between counsel for defendant and the court as to just what should be considered at the hearing of April 19, and the court stated: "The temporary restraining order was issued upon the allegations of the complaint. Of course, you have met those by answer, but the hearing is not upon the merits, but it is upon the question whether or not a temporary injunction should be granted, or the temporary restraining order should be continued." The court then denied the motion to dissolve and directed counsel for defendant to proceed, which counsel had previously objected to doing on the ground that the burden of proof was upon the plaintiff. Defendant was allowed an exception and counsel again directed to proceed. Defendant predicates his third assignment of error on this ruling.

A copy of the notice to vacate is made Exhibit A, attached to and made a part of the complaint. Five specific breaches of the agreement by the defendant are alleged in the notice, as follows: That defendant had failed to make proper accounting of the grains raised on the premises for the season of 1936; had failed and refused properly to summer-fallow the lands in 1936; had failed and refused to remove the refuse and manure from around the buildings; had failed to make proper repair of fences and buildings; and had failed and refused to keep noxious weeds under control. Specific damages to plaintiff are alleged by reason of each breach in the aggregate sum heretofore mentioned. It is then alleged that the defendant is in possession of the premises, threatens and intends to remain in possession and farm the lands for the year 1937, and will do so unless restrained by order of the court. It is further alleged that defendant is insolvent, that plaintiff has no adequate remedy at law, and that plaintiff will suffer irreparable damages if defendant is allowed to remain upon the premises and farm the same for 1937.

The answer admits that defendant is in possession of the premises and intends to farm same for the season of 1937; alleges that he is rightfully in possession by reason of holding over for more than sixty days after the expiration of his former tenancy without notice to vacate; that the notice of August 29, 1936, was premature and ineffective; that plaintiff waived any right she may have acquired by such notice in not instituting legal action to regain possession of the premises within a reasonable time after giving such notice; that plaintiff is estopped from ousting defendant for the further reason that he was led to believe that it was agreeable to plaintiff for him to farm the premises for 1937, and that defendant had provided seed for seeding the land and made other preparations in connection therewith; that he received no notice of any breach of contract or notice "to repair any of the covenants alleged to have been broken," and, by reason of the foregoing laches of plaintiff, defendant is entitled to hold the premises for one year or until December, 1937. Defendant denies that he is insolvent, but, on the contrary, has credit and property amply sufficient to meet and discharge any claims legally established against him; and specifically denies all allegations of the complaint upon which damages to plaintiff are predicated. As a further defense and counterclaim it is alleged that defendant summer-fallowed 166 acres of the lands in 1936, and that such labor and services are of the reasonable value of $5 per acre; that in the year 1935 he performed services for the plaintiff, at her special instance and request, in building a reservoir, which are of the reasonable value of $150; and prays that he be given judgment for $830 for the summer-fallowing, $150 for the labor on the reservoir, his costs herein, and that the action be dismissed. The affirmative matter of the answer is traversed by reply.

Upon the termination of the hearing the court took the matter under advisement, and on April 22, 1937, made the following order: "An order having heretofore, to-wit: on the 5th day of April, 1937, issued in the above entitled action, requiring the defendant to be and appear before this court at the hour of 10:00 o'clock A. M., on the 19th day of April, 1937, then and there to show cause why he, his agents, servants and employees should not be enjoined and restrained during the pendency of said action from operating, farming or interfering with farming of the land mentioned in said complaint, and the hearing on same having been had, and the court being fully advised in the premises.

"Now Therefore, it is ordered, adjudged and decreed, that, during the pendency of this action, until the final determination thereof or until the court should otherwise order, the defendant and his agents, servants and employees desist and refrain from farming said premises or interfering with anyone sent there by this court, or the owner of said farm, to farm the same, and that the real property is described as follows: [Here follows a description of the lands involved.] Dated this 22nd day of April, 1937."

Defendant appeals from this order, from the order denying his motion to dissolve the restraining order of April 5, 1937, and from the judgment.

Defendant's assignments of error, five in number, are in substance as follows: The court erred in issuing the temporary restraining order; in not granting the motion to dissolve; in placing the burden of proof upon the appellant; in making the restraining order permanent; and in entering judgment for plaintiff.

The chief question, and, in the final analysis, the only question we are required to decide here, is whether the restraining order issued April 22, 1937, was legally issued or not, but many other question, incidental to such chief question, are involved and will require consideration.

The allegations contained in the pleadings, in so far as they affect the merits of the controversy, are not before us by the appeal and will not be considered any further than it is necessary to determine the legality of the court's action in issuing the restraining order just mentioned.

It is quite obvious that the parties are in doubt about whether their respective rights arise under the written contract of June, 1934, or whether they are governed by the statutes and rules of law applicable to landlord and tenant. Paragraph II of the complaint alleges that the parties entered into a verbal lease in 1936, whereby defendant agreed to farm the lands for the farming season of that year, and such lease appears to be the foundation of this action; but in alleging violation of covenants plaintiff specifies the covenants contained in the written lease of 1934, with the obvious notion that defendant held over for the year 1936 under the 1934 agreement.

Defendant contends he had a right to farm the lands for the 1937 season and to hold until December of that year, which shows clearly that he too assumed that he was in possession of the premises under the 1934 lease, as he relied on the date of termination fixed by that agreement, and testified that his holding over entitled him to possession until December 1, 1937, according to the terms of the old agreement. Both parties testified that the verbal understanding was that the farming for the 1936 season should be carried on under the terms of the written lease of 1934 governing the farming...