Gilman v. McDaniels
| Decision Date | 29 June 1916 |
| Docket Number | 298811 |
| Citation | 158 N.W. 459,177 Iowa 76 |
| Parties | S. A. GILMAN, Appellant, v. R. T. MCDANIELS, Appellee |
| Court | Iowa Supreme Court |
Appeal from Wright District Court.--CHARLES E. ALBROOK, Judge.
ACTION at law to recover $ 424 rent alleged to be due on an oral contract; a second count to recover the same upon a quantum meruit for the use of land. The defendant counterclaimed, and asked to recover $ 360 rent paid by him and $ 200 for work and labor in preparing and plowing land and putting it in condition for cropping as soon as it should be tiled under an agreement as alleged by him. Defendant alleges that the tiling was not done as agreed. Trial to a jury, and a verdict in favor of the defendant in the sum of $ 280. By special findings, the jury answered that they allowed plaintiff $ 180 as rental, and allowed the defendant the sum of $ 460, the difference between the two being the amount of the general verdict. The court rendered judgment against plaintiff for $ 280 and costs. The plaintiff appeals.
Affirmed.
Prince & Neese and Birdsall & Birdsall, for appellant.
Nagle & Nagle, for appellee.
1. Plaintiff avers that, about August 1, 1911, by oral agreement, he leased to the defendant, for the term of one year from March 1, 1912, certain farm land; that for the use of said premises defendant promised and agreed to pay as rent two fifths of the grain raised on the same, and $ 4 per acre for the land not used in raising grain. Plaintiff alleged that there are 106 acres of such land; alleged also that the agreement was that one half the rent was to be paid September 20, 1912, and the other half, January 1, 1913; that defendant entered upon and has continued in possession of said premises for the term of said lease; that there is now due $ 424. In the second count, plaintiff averred that defendant used and continued in possession of the land from March 1, 1912, the reasonable value of which was two fifths of grain grown and $ 4 per acre for other land.
Defendant denies all allegations in the petition; denies that he made an oral agreement of lease with plaintiff in August, 1911 and denies that he entered upon or used said premises during the year 1912 under any lease made in the year 1911. He says further that, about September, 1910, he had a conversation with plaintiff about leasing the property described; that at said time the land was low, wet and not tiled, and not in a condition to be successfully farmed; that large portions thereof had been partially farmed in previous years, and, because of the wet character of the land, had gone back and grown up to weeds; and that plaintiff induced defendant to lease the land, stating and representing to him that, if he would lease it for two years from March 1, 1911, he (plaintiff) would thoroughly tile all of said land so that defendant could cultivate the same; that, relying upon said promise, the defendant, about September, 1910, entered into an oral agreement with plaintiff for the use of said land for two years from March 1, 1911, in which oral agreement plaintiff orally undertook to tile all of said land, so that defendant could cultivate the same during each of said years; that defendant was to pay as rent two fifths of the grain and $ 4 per acre for about 90 acres, making $ 360 cash rent; that, in pursuance of said oral agreement, and relying thereon, defendant took possession and paid the cash rent of $ 360, and performed a large amount of work and labor, preparing and plowing and putting the wet land in a condition for cropping as soon as the same was tiled, which work was made necessary to be done so as to enable him to farm the wet land as soon as it was tiled, which services so rendered were worth $ 200, all of which inured to the permanent benefit of said land, and for which he received no benefit; that plaintiff has repudiated the agreement and refused and neglected to tile the land. Defendant asks judgment for $ 560 and costs. Defendant admits that he used and occupied the land for the year 1912, but denies that the fair rental value was two fifths of the grain and $ 4 per acre for the balance, but says that the fair rental value of the cultivated land in the condition it was in was not more than one third of the grain, and that the fair rental value of the balance was not more than $ 250.
For reply to the counterclaim, plaintiff denies all allegations therein, and says that defendant paid to plaintiff all cash rent due on account of the use of said premises for the year commencing March 1, 1911, up to March 1, 1912, and delivered to plaintiff all grain rent due him thereon; that plaintiff and defendant settled and compromised all demands for that year, and further alleges that the agreement stated in the second paragraph or division of defendant's answer and counterclaim is within the statute of frauds and void.
The first two assignments of error relate to the admission of testimony and are argued together. The other errors assigned, except the last, relate to alleged error in the instructions. The instructions given were not excepted to. But, as the statute is not complied with in regard to excepting to instructions given by the court, we need not notice this further. Sec. 3705-a, Code Supp., 1913.
The last assignment of error states that the court erred in overruling defendant's motion for new trial, which motion was based upon substantially the same grounds.
The defendant testified that he took possession of the farm a few days after he rented it, and plowed about 80 acres in the fall of 1910, and that in plowing the land he relied upon plaintiff's promise to tile the land so that defendant could crop it; that some portions of the land that he plowed were so wet that he was not able to crop it in 1911; that they plowed some of the land that was too wet to be cultivated without being tiled; that they plowed about 20 to 30 acres more in the spring of 1911, and plowed somewhere in the neighborhood of 20 acres that he was not able to successfully cultivate and raise a crop on; that he plowed the land in the spring and then disked it; that he planted the crop and it was so wet that it drowned out; that part of it he planted over, and that drowned out. He was then asked this question:
The argument of appellant at this point embraces three propositions:
(1) That defendant's action upon the item of his counterclaim,--that is, recovery for money expended and time lost on 20-acre tract by reason of plaintiff's alleged failure to tile,--arises out of an oral lease of land for a term of two years, which falls within the statute of frauds and that the agreement was not fully executed, and the taking of...
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