Hampton v. Lee, 5341

• Decision Date: 06 March 1930
• Docket Number: 5341
• Citation: 285 P. 1023,49 Idaho 16
• Parties: C. T. HAMPTON and EMMA HAMPTON, Appellants, v. N. H. LEE and B. F. BUFFINGTON, Respondents
• Court: Idaho Supreme Court

285 P. 1023

49 Idaho 16

C. T. HAMPTON and EMMA HAMPTON, Appellants, v. N. H. LEE and B. F. BUFFINGTON, Respondents

No. 5341

Supreme Court of Idaho

March 6, 1930

LANDLORD AND TENANT - MANURE AS PART OF REALTY - MODIFICATION OF WRITTEN CONTRACT - PLEADING - ASSENT - WHEN INFERRED-FAILURE OR INABILITY TO READ.

1. In lessor's action to enjoin tenant from removing manure where complaint did not make any reference to lease or modification of it, tenant's modification did not control, since, where modification of contract is relied upon for recovery, such modification must be pleaded.

2. Where complaint in lessor's action to enjoin tenant from removing manure alleged that manure accumulated from feed grown upon leased land, and answer alleged greater portion thereof had accumulated from feed produced on other lands issue was limited to determination of amount of manure accumulated from feed produced on leased property, and landlord could not claim more, as court cannot grant relief not embraced within issues under C. S., sec. 6829.

3. The general rule is that manure made on farm directly or indirectly from feed produced thereon belongs to farm, and way-going tenant has no right to remove it.

4. Manure made upon farm from feed produced on land other than leased land is not part of realty and may be held by tenant.

5. Where, after lessor signed lease and sent it to tenant for his signature, tenant struck out provision therein whereby he was to scatter on premises all manure accumulated thereon and returned it to lessor who recorded it, modification of lease could be inferred and lessor would be bound thereby.

6. Failure or inability of party to read written contract before signing it is not ground for setting it aside.

APPEAL from the District Court of the Eleventh Judicial District for Twin Falls County. Hon. W. A. Babcock, Judge.

Action to enjoin defendants from removing manure from leased property, and for damages. Judgment for defendants. Affirmed.

Judgment affirmed; costs to respondents.

Turner K. Hackman, for Appellants.

It cannot be held that plaintiffs ratified the alteration, because there can be no ratification or waiver, for it must be shown that the alteration was made with the knowledge of plaintiffs; while in the instant case the evidence of both plaintiff Hampton and defendant Lee is that Lee never called plaintiffs' attention to the alteration, and plaintiff C. T. Hampton testified that he never observed the alteration; property was community property and it was necessary for Mrs. Hampton to assent to the alteration. There was no evidence that she ever saw the lease after signing and acknowledging same. (Smith v. Barnes, 51 Mont. 202, 149 P. 963, Ann. Cas. 1917D, p. 330, and note at pp. 337 to 346, inclusive, citing English, Canadian, federal and state supreme court cases in sixteen states.)

If alteration was known to C. T. Hampton, but if not shown to be known to Mrs. Hampton, and acquiesced in by her, she is not bound. (Shiffer v. Mosier, 225 Pa. 552, 17 Ann. Cas. 756, and note, 74 A. 241, 24 L. R. A., N. S., 1155.)

The court erred in instructing the jury as follows:

"The court instructs the jury that under the terms of the lease introduced in evidence, Exhibit 'A,' the defendant Lee was not required to haul or scatter upon said premises the manure accumulated thereon; and you are further instructed that a tenant has a right to manure produced on leased premises by stock in excess of that maintainable by the products of the premises from feed produced elsewhere." (Lewis v. Jones, 17 Pa. 262, 55 Am. Dec. 550, and note at p. 554; Fay v. Muzzey, 13 Gray (Mass.), 53, 74 Am. Dec. 619; Lewis v. Lyman, 22 Pick. 437; Barrington v. Justice, 4 Pa. L. J. 289; Elting v. Palen, 60 Hun, 306, 38 N.Y. St. 93; Strong v. Doyle, 110 Mass. 92; Plumer v. Plumer, 30 N.H. 558; Daniels v. Pond, 21 Pick. (Mass.) 367, 32 Am. Dec. 269, and note at p. 271; Perry v. Carr, 44 N.H. 118; Hill v. De Rochemont, 48 N.H. 87; Middlebrook v. Corwin, 15 Wend. (N. Y.) 169; Pearson v. Friedensville Zinc Co., 1 Pa. Co. Ct. 660; Taylor's Landlord and Tenant, 6th ed., sec. 541, p. 222.)

Bothwell & Chapman, for Respondents.

A tenant has a right to manure produced by his own livestock on leased premises in excess of that maintainable by the products of the premises from feed produced elsewhere. ( Pickering v. Moore, 67 N.H. 533, 68 Am. St. 695, 32 A. 828, 31 L. R. A. 333; Snow v. Perkins, 60 N.H. 493, 49 Am. Rep. 333; Nason v. Tobey, 182 Mass. 314, 94 Am. St. 659, 65 N.E. 389; Taylor v. Newcombe, 123 Mich. 637, 82 N.W. 519; Gallagher v. Shipley, 24 Md. 418, 87 Am. Dec. 611; 36 C. J. 100, sec. 736, note 25; 16 R. C. L., p. 755; Lewis v. Jones, 17 Pa. 262, 55 Am. Dec. 550, note 554; Fay v. Muzzy, 13 Gray (Mass.), 53, 74 Am. Dec. 619; Daniels v. Pond, 21 Pick. (Mass.) 367, 32 Am. Dec. 269.)

BUDGE, J. Givens, C. J., and Lee, Varian and McNaughton, JJ., concur.

OPINION

BUDGE, J.

Plaintiffs, husband and wife, were the owners of an 80-acre tract of land which they leased to defendant Lee. It will be more convenient hereinafter to refer to the plaintiffs in the singular, or as lessor. Before the expiration of the term of the lease the lessee undertook to sell and have delivered to defendant Buffington a greater portion of the manure accumulated on the premises from the livestock owned by the lessee. This action was instituted by plaintiff to have adjudicated whether the lessor or lessee was entitled to have and dispose of the manure.

The complaint alleged the accumulation of the manure from straw and excrement produced from feed grown upon the leased land, that the same was of inestimable value when spread over the land in preserving its fertility, and that defendants were preventing plaintiff from so doing and depriving plaintiff of his property therein. As a part of defendant Lee's answer and affirmative defense the lease was referred to and annexed thereto, and it was alleged that defendant had conducted a dairy business and kept on the premises upwards of 75 head of cattle, and that a greater portion of the manure had accumulated from feed produced on lands other than those leased from plaintiff, not to exceed 75 loads of manure having accumulated from feed produced on the leased property. Defendant Lee claimed to be the owner of and entitled to the use and disposition of 225 loads of the total accumulation. The cause was tried to the court and a jury. Upon verdict of the jury in favor of defendants, judgment was entered that plaintiff take nothing by reason of his complaint. This appeal is from the judgment.

Much of the argument of counsel concerns the effect of the alteration of the lease by defendant Lee, after it had been sent to him for signature, in striking out a provision thereof whereby he was to scatter upon the premises all the manure accumulated thereon; and whether or not, because plaintiff failed to file an affidavit denying the genuineness of the instrument, in its modified form, set out in the answer, any question may be raised in regard thereto. We are of the opinion these matters do not control the decision, for the reasons following.

The complaint did not make any reference to the lease or modification of it. Where a modification of a contract is relied upon for recovery, such modification must be pleaded. (Milner v. Earl Fruit Co., 40 Idaho 339, 232 P. 581.)

The complaint alleged that the manure accumulated from feed grown upon the leased land, and the answer alleged a greater portion thereof had accumulated from feed produced on lands other than those leased by plaintiff. The issue was limited to a determination of the amount of manure accumulated from feed produced on the leased property, and plaintiff was not entitled to claim more. The court cannot grant relief not embraced within the...