Jensen v. Anderson

• Decision Date: 10 July 1917
• Docket Number: 3043
• Court: Utah Supreme Court
• Parties: JENSEN v. ANDERSON

167 P. 811

50 Utah 515

JENSEN v. ANDERSON

No. 3043

Supreme Court of Utah

July 10, 1917

Rehearing denied October 6, 1917.

Appeal from District Court, First District; Hon. J. D. Call, Judge.

Action by Jacob Jensen against P. M. Anderson.

Judgment for plaintiff. Defendant appeals.

AFFIRMED.

Geo Halverson for appellant.

W. J Lowe and B. C. Call for respondent.

GIDEON, J. FRICK, C. J., and McCARTY, CORFMAN, and THURMAN, JJ., concur.

OPINION

GIDEON, J.

This is an action instituted by the plaintiff to recover from the defendant 596 bushels of wheat, or the value thereof, alleged to be $ 540. The complaint alleges that one O. J. Olson was the owner of 81 acres of land in Box Elder County in April, 1911; that thereafter, on or about the 16th day of January, 1914, Olson sold and conveyed said premises to the plaintiff, Jacob Jensen; that on April 1, 1911, Olson leased the premises to the defendant, P. M. Anderson, for a term of 5 years and 6 months, making the lease terminate on October 1, 1916. The agreement of the parties, as contained in said lease, is as follows:

"O. J. Olson agrees to furnish material and fence said tract of land during the autumn of 1911. P. M. Anderson agrees to plow, clear and burn all brush, cultivate, furnish all seed, and seeding the whole tract of land during the year 1911. It is also agreed that P. M. Anderson shall pay no part or portion to O. J. Olson of the first and second crops respectively that will be harvested in the years 1912 and 1914, while out of the third crop, which will be grown and harvested in the year 1916, P. M. Anderson shall pay a rental to O. J. Olson, the amount of equal to one-fourth of the whole crop grown and harvested and threshed from said land, said one-fourth shall be clear and free of all expenses. Mr. P. M. Anderson agrees to plow and crop the whole tract of eighty-one acres every alternate year during the term of this lease as given above."

It is alleged in the complaint that subsequent to the conveyance to the plaintiff an oral agreement was entered into between the plaintiff and the defendant, whereby the defendant agreed to farm and cultivate the premises for the season of 1915, and give the plaintiff one-fourth of the crop harvested thereon during that year; that during the summer of 1915 the defendant harvested the crop growing upon the land, and on the 5th and 6th days of August, 1915, threshed 2,383 1/2 bushels of wheat; that the plaintiff was the owner and entitled to the immediate possession of one-fourth of the said grain, and on both the 5th and 6th days of August, 1915, demanded from the plaintiff one-fourth of the amount of wheat threshed, and further alleged that as the grain was threshed the defendant wantonly, wrongfully, and unlawfully obtained possession of the same against the will and consent of plaintiff, and has continued since said dates to wrongfully and unlawfully retain possession of the same from the plaintiff against plaintiff's will. A general demurrer was filed to that complaint on the ground that it does not state facts sufficient to constitute a cause of action. After overruling the demurrer an answer was filed, admitting the execution of the lease, the ownership of the land in Olson at that time, and the subsequent transfer of the same to the plaintiff herein, and denying all other allegations of the complaint. A trial was had to a jury, which resulted in a verdict for the plaintiff, awarding him possession of the wheat.

Appellant first attacks the sufficiency of the complaint, and it is contended that as this is a suit for the recovery of personal property, the complaint fails to show a right in plaintiff to the immediate possession of the property upon the date of instituting the action. The original complaint was filed August 6, 1915. The allegations in the second amended complaint, upon which the issues were tried, among others, are as follows:

"That during the summer of 1915, the said defendant harvested the crops growing upon said premises, and on the 5th and 6th days of August, 1915, threshed 2,383 1/2 bushels of wheat from said grain grown upon said premises.

"That as said grain was threshed, the plaintiff was the owner of and entitled to the immediate possession of one-fourth thereof, and that on the said 5th and 6th days of August 1915, the plaintiff demanded of the defendant one-fourth of said grain, which was all similar in kind and capable of division.

"That as said grain was threshed, as aforesaid, the defendant wantonly, wrongfully, and unlawfully obtained possession of said wheat, and all thereof, without the plaintiff's consent, and now, and at all times since said taking, wrongfully and unlawfully continues in the possession of said grain, and wrongfully detains the same from plaintiff, against...