Hunter Land & Development Co. v. Watson

• Decision Date: 14 January 1922
• Docket Number: Na. 2982.
• Parties: HUNTER LAND & DEVELOPMENT CO. v. WATSON.
• Court: Missouri Court of Appeals

236 S.W. 670

HUNTER LAND & DEVELOPMENT CO. v. WATSON.

Na. 2982.

Springfield Court of Appeals. Missouri.

January 14, 1922.

Appeal from Circuit Court, Pemiscot County; Sterling H. McCarty, Judge.

Action by the Hunter Land & Development Company against Z. W. Watson. From a judgment for only part of the relief demanded, plaintiff appeals. Reversed and remanded, with directions.

Ward & Reeves, of Carthersville, for appellant.

BRADLEY, J.

Plaintiff sued to recover $405 for rent on 67.5 acres of land. It obtained a judgment for $240, and, deeming this amount inadequate, filed motion for new trial, which was overruled, and it appealed.

The answer set up two defenses that get to the jury: First, that defendant was not to pay rent on any land he could not cultivate on account of overflow; and, second, that he was to have pay for any work he did in cleaning up the premises after an overflow, and for repairing the fences. He alleged that he did certain work of this character amounting to 320, and asked credit for said sum as a counterclaim. The land was originally rented to one Hill. Hill gave it up, and it was let to defendant in the spring of 1020. At the time defendant rented there was nothing said about his not having to pay rent on that part he could not cultivate, nor was there anything said about paying for work and repairs. Later, an overflow in June came or was threatened, and defendant was threatening to abandon the place, and plaintiff's agent, who rented land to defendant, told him in effect to go ahead and cultivate the place and that he would only have to pay rent on what he got in. This was between the 1st and 10th of June. Subsequent to the original renting, just when is not clear, plaintiff's agent agreed to pay defendant for any work or repairs that he might do or make. Nothing, however, was said about this at the time of the rent agreement. Plaintiff was to do all he could to get all the land in, and cult vate it, and if he could not do so he was to ray rent only on what he got in. Because of the overflow and the deposit thereafter he was able to cultivate only 40 acres.

The statement, supra, is wholly from defendant's side of the case. Plaintiff's agent denied that there was any agreement at any time about paying only on what land was cultivated. He testified that the contract or agreement was that defendant was to have the land at 36 per acre, without any ifs or exceptions, and without regard to whether he was able to cultivate it or not. He said that nothing was said about paying for such work and repairs as defendant claims that he did, but said it was customary for his principal to pay for such items.

Plaintiff contends that the subsequent promise, if made by its agent, to the effect that defendant would have to pay only on what he was able to cultivate, was void, in that there was no consideration therefor. The only consideration claimed for such promise is that defendant was about to abandon the premises, and to avoid this abandonment plaintiff's agent made the promise. Defendant was already obligated to cultivate the premises. If he had abandoned them he would have been liable for the whole rent under his agreement; this according to his own version. Could he thereafter, with no consideration moving from him other than an agreement to do that which he had already agreed to do, make a valid contract with his landlord by which he would be relieved from paying rent on any of the land he could not cultivate? We:think not. We are of the opinion that this subsequent agreement touching the rent was a nudum pactum and wholly void. Smith v. Sickenger, 202 S. W. 262, and cases there cited, sustain us in our conclusion as to the validity of defendant's subsequent agreement. Smith v. Sickenger was in some respects quite similar to the case at bar, and the question involved was the same. In that case it is said:

"We think the new contract testified to by defendant is without force or effect, and should not have been submitted to the jury. Defendant testified that he was to pay for rent 50 barrels of corn to be raised on the premises. It was his duty under that contract of tenancy to perform good husbandry and make every reasonable effort to get a stand of corn and to cultivate it to maturity. It is...