Johnson v. Shelley

• Decision Date: 07 April 1919
• Docket Number: 3278
• Citation: 54 Utah 305,180 P. 430
• Court: Utah Supreme Court
• Parties: JOHNSON v. SHELLEY

180 P. 430

54 Utah 305

JOHNSON v. SHELLEY

No. 3278

Supreme Court of Utah

April 7, 1919

Appeal from the District Court of Utah County, Fourth District; Hon A. B. Morgan, Judge.

Action by A. A. Johnson against Ernest W. Shelley.

Judgment for defendant. Plaintiff appeals.

REVERSED with directions to grant a new trial.

H. V Van Pelt and R. Gilray, both of Salt Lake City, for appellant.

H. S Tanner of Salt Lake City, for respondent.

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

OPINION

GIDEON, J.

Plaintiff, in this proceeding prays for a cancellation of a written lease made between him and defendant; for damages claimed to have been sustained by reason of the failure of defendant to keep the terms of such written agreement. Defendant denied liability, and, by way of counterclaim, asked judgment as damages against the plaintiff for failure on his part to keep certain covenants of the lease and judgment for certain moneys alleged to have been received by the plaintiff for the sale of produce taken from the leased premises. In reply plaintiff denied the allegations of the counterclaim.

Trial was had before the court and a jury. At the close of plaintiff's case, the court, on defendant's motion, granted a nonsuit against plaintiff. At the termination of the case the court instructed the jury to return a verdict against plaintiff for one-half, less certain credits owing by defendant, of the amount received by the plaintiff for the produce sold from the premises. From that judgment plaintiff appeals.

The exclusion of certain testimony offered by plaintiff, granting the nonsuit and directing a verdict for the defendant upon the counterclaim, is assigned as error.

By the terms of the written lease plaintiff, as party of the first part (designated as such in the lease), let to the defendant, as party of the second part, for a term beginning March 1, 1917, and ending March 1, 1922, certain farming land located in Utah county. The contract, among other things, provides that the first party shall construct all necessary buildings on the premises, "also to furnish all implements necessary to run said farm or farms, and to stock said farm with cattle, hogs and chickens as fast as said second party can provide feed and be able to care for same, provided that said stock, etc., be fed out of undivided crops raised on said farm." The second party undertook to give to the plaintiff one-half of all proceeds from the farm in grain, hay, cattle, hogs, etc. It was further provided that the second party is to feed the animals used for work on the farm with his own feed and at his own expense, to keep the buildings, fences, and farm implements in repair, and to turn the same over to the first party at the termination of the lease, the first party to furnish all seeds for planting, and pay all taxes on the farm or farms. It is further stipulated in the lease that "said second party (is) to do all work in a workmanlike manner and use diligence in getting plowing done in the proper season and to allow no unnecessary waste on said premises." It is alleged in the complaint that defendant had neglected to properly care for the stock; had failed to do plowing at the right season; that he had neglected to care for the farming implements; had neglected to feed and care for the cattle upon the premises; and had also failed to farm the premises in a workmanlike manner. Definite and specific amounts are alleged to have been sustained as damages by reason of such failure on the part of the defendant.

At the trial, upon objection of the defendant, the court refused to permit plaintiff to testify to any failure on the part of the defendant to keep the terms of the lease prior to July 8 1917, the court being of the opinion that as the contract was executed on that date the defendant was not and could not be liable for...