Jenkins v. Womach

• Decision Date: 09 May 1910
• Citation: 128 S.W. 530,143 Mo. App. 410
• Parties: JENKINS v. WOMACH.
• Court: Missouri Court of Appeals

128 S.W. 530

143 Mo. App. 410

JENKINS v. WOMACH.

Kansas City Court of Appeals. Missouri.

May 9, 1910.

1. FRAUDS, STATUTE OF (§ 58)—VERBAL LEASE—LIABILITY THEREON.

A verbal lease is binding for one year if followed by possession, and if the lessor, without the lessee's fault, refuse to perform according to its terms, or to permit the lessee to perform it on his part, the lessee may recover for the breach.

2. LANDLORD AND TENANT (§ 331)—FARM LEASE—BREACH OF CONTRACT BY LESSOR— DAMAGES.

In an action by the lessee of a farm on shares against the lessor for damages for breach of contract, it was error to tell the jury they might, in estimating damages, consider the value of the premises to plaintiff over the rent to be paid defendant, as the measure of his damages was not what the premises would be worth to him, but what would be their market value above the amount of rent to be paid.

3. LANDLORD AND TENANT (§ 331)—FARM LEASE—BREACH OF CONTRACT BY LESSOR.

The measure of damages for breach by lessor of a contract of lease of a farm on shares is the reasonable value of the premises, if they have no market value, and the fair value of the crops which might have been raised by lessee is not a proper element of damages, being too conjectural for judicial ascertainment.

4. DAMAGES (§ 209)—INSTRUCTIONS—ROVING COMMISSION TO JURY.

It is error to tell the jury they may consider, in estimating plaintiff's damages, "any other loss" which "plaintiff sustained as a direct result of the breach of said contract by defendant," thereby giving them a roving commission to do as they think proper.

Appeal from Circuit Court, Buchanan County; Hon. George L. Zwick, Special Judge.

Action by Henry Jenkins against George W. Womach for damages for breach of contract as lessor. From a judgment for plaintiff, defendant appeals. Reversed.

C. C. Crow, for appellant. Eastin & Corby, for respondent.

BROADDUS, P. J.

The plaintiff's suit is founded upon a contract for the lease of a farm and other matters incidentally connected therewith. On about the 1st day of November, 1904 the parties to this suit entered into a verbal contract or lease, by which appellant leased to respondent a farm of about 65 acres in Bloomington township, Buchanan county, Mo., for a term ending March 1, 1906. By the terms of this lease it was provided that possession should be at once given, and that same should continue throughout said term, during which time respondent was to occupy the farm and tend it on the shares, have the use of pasturage for his stock, and should give to appellant one-half of the crops raised, delivered in crib or barn or otherwise. It was further provided that appellant should furnish a team and necessary farm implements to respondent to enable him to farm said land. Immediately after the making of this lease, and along about the 1st of November, 1904, respondent moved upon the farm, cut wood for summer use, cleaned up brush, and did other work about the premises. At the time the lease was entered into, and up to about March 1, 1905, appellant was running a butcher shop in the town of De Kalb, near the farm. Along about March 1, 1905, he sold the shop, and the evidence shows that at about that time he demanded possession of respondent, giving as a reason that he had sold his shop and wanted the farm back, as he would otherwise have nothing to do during the summer. Upon respondent's refusal to give up the premises, appellant brought a landlord's complaint against him before a justice of the peace court of the township for possession of the premises. The case was carried through the justice and circuit courts, thence to the Court of Appeals, in all of which it was decided in respondent's favor. The cause is reported in 128 Mo. App. 408, 107 S. W. 423. Appellant also refused to furnish teams and implements for tending the farm, and refused to permit respondent to farm said land. Respondent was thus deprived of the benefits of his contract and brought the present suit for damages for the breach thereof. In the former suit this court decided that the verbal contract referred to, followed by possession, constituted a lease for one year from...