Keltner v. Bundy

• Decision Date: 03 January 1925
• Citation: Keltner v. Bundy, 233 P. 516, 40 Idaho 402 (Idaho 1925)
• Parties: M. H. KELTNER, Respondent, v. W. H. BUNDY, Appellant
• Court: Idaho Supreme Court

233 P. 516

40 Idaho 402

M. H. KELTNER, Respondent, v. W. H. BUNDY, Appellant

Supreme Court of Idaho

January 3, 1925

LEASE-ORAL EXTENSION-INSUFFICIENCY OF EVIDENCE-APPEAL AND ERROR-NONSUIT-ASSIGNMENT OF ERROR INSUFFICIENT.

1. An order of the trial court denying a motion for nonsuit will not be reviewed on appeal where subsequent to the making of the motion evidence is offered by and admitted on behalf of the party who made the motion.

2. A specification that the trial court erred in refusing to enter judgment for defendant and in entering judgment for plaintiff is insufficient and presents no question to this court for review.

3. The statement of a lessor of farm lands for a term of two years that he would give the lessee a chance at getting the land for another year if he did not sell it does not constitute an extension of the term of the lease.

4. A judgment of the trial court will be reversed where there is no substantial evidence to sustain it.

APPEAL from the District Court of the Tenth Judicial District, for Nez Perce County. Hon. Wallace N. Scales, Judge.

Action to recover for work and labor performed. Judgment for plaintiff. Reversed.

Reversed. Costs to appellant.

Cox &amp Martin, for Appellant.

The evidence is insufficient to sustain the verdict. (24 Cyc 990; 16 R. C. L., p. 886, par. 390; Knight Light Co. v Farley, 192 Ill. 611.)

Where the evidence is insufficient the judgment must be reversed. (Quayle v. Ream, 15 Idaho 666, 99 P. 707; Rippetoe v. Feely, 20 Idaho 619, 119 P. 465; Goldstone v. Rustemeyer, 21 Idaho 703, 123 P. 635; Breshears v. Callender, 23 Idaho 348, 131 P. 15.)

A clause in a lease which is manifestly of temporary application only will not be construed to apply to a renewal or extension without specific testimony that that was the intention of the parties. (16 R. C. L., p. 890, par. 393; Wood v. Edison Electrical Ill. Co., 184 Mass. 523, 69 N.E. 364; Hill v. Beatty, 61 Cal. 292; Powers v. Cope, 93 Ga. 248, 18 S.E. 815; Slack v. Knox, 213 Ill. 190, 72 N.E. 746, 68 L. R. A. 606.)

Fred E. Butler and Edward C. Butler, for Respondent.

No motion for new trial was made specifying wherein the evidence was insufficient to justify the decision as required by C. S., sec. 6888, and this court will not review on an appeal from a judgment only the question of whether or not the evidence was sufficient to sustain the decision. (C. S., sec. 7170; Maple v. Williams, 15 Idaho 642, 98 P. 848.)

"Any error in denying a motion for nonsuit is waived by the subsequent introduction of testimony on behalf of the defendant." (Rippetoe v. Feeley, 20 Idaho 619, 119 P. 465.)

The particularities of the insufficiency should have been pointed out at the trial so as to give opportunity of removal of the objection. Failing in that the decision will be sustained. (Idaho Mercantile Co. v. Kalanquin, 7 Idaho 295, 62 P. 925.)

WM. E. LEE, J. McCarthy, C. J., William A. Lee, C. J., and Budge, J., concurring.

OPINION

WM. E. LEE, J.

This is an action to recover for work and labor performed under a lease of certain farm lands. Appellant, a land owner, had leased to respondent's assignor 320 acres of farm land from October 1, 1919, to October 1, 1921. The lease contained the following provision:

"It is understood and agreed that this lease is made subject to the sale of the said premises at any time; said second party agreeing that in case of sale before he has done any plowing on said tract he will give immediate and peaceful possession thereof, upon ten days written notice, but if he shall have done plowing, harrowing, disking, or other farm work, he will give such possession upon the payment of the sum of Four Dollars per acre for such land as he shall have plowed, provided that spring plowing shall have been plowed not less than six inches deep and fall plowing or summer fallow plowing not less than seven inches deep; One Dollar per acre for all land that he shall have seeded; Fifty Cents per acre for each harrowing that he shall have done on the land; Seventy-five cents per acre for the disking, that he shall have done on the land; Fifty-cents per acre for the thorough weeding by horse weeder, that shall have been done upon the land; Two Dollars Fifty Cents per bushel for all grain that shall have been used by said first party in seeding said land."

Before the expiration of the term of the lease appellant sold the land and respondent surrendered possession. At the time respondent surrendered possession it is alleged that he had plowed, harrowed, disked, etc., 87 acres of the land, for which he demanded $ 610.75. Appellant answered, denying the allegations of the complaint. The cause was tried to the court without a jury, findings of fact and conclusions of law were waived, and judgment was rendered in favor of respondent in the sum of $ 685, together with costs. The assignments of error will be considered in order.

The first error assigned is that the court erred in denying appellant's motion for nonsuit at the close of all the evidence and this court has held that where a defendant makes a motion for nonsuit, which is denied, and subsequently adduces evidence in the cause, the order of the trial court denying the motion for nonsuit is not reviewable on appeal. (Groefsema v. Mountain Home Co-op. Irr. Co., 33 Idaho 86, 190 P. 356; Stewart v. Stewart, 32 Idaho 180, 180 P. 165; Palcher v. Oregon Short Line Railroad Co., 31 Idaho 93, 169 P. 298; Smith v. Potlatch Lumber Co., 22 Idaho 782, 128 P. 546; Rippetoe v. Feely, 20 Idaho 619, 119 P. 465; Shields v. Johnson, 12 Idaho 329, 85 P. 972.)

Appellant contends that the "court erred in refusing to enter judgment for defendant and in entering judgment for plaintiff." The assignment is not sufficiently specific, and presents no question to this court for review. (Bain v. Olsen, 39 Idaho 170, 226 P. 668; Carolina v. Montgomery, 74 Okla. 121, 177 P. 612; Nelson v. Reynolds, 59 Okla. 168, 158 P. 301; Connelly v. Adams, 52 Okla. 382, 152 P. 607.)

The third assignment is that the evidence is insufficient to sustain the judgment; and the alleged insufficiency is pointed out. This is the only assignment of error discussed to any extent in the briefs. Respondent filed his original complaint basing his right of recovery on a promise of appellant to pay for work done in 1921, but after service of a motion directed to the complaint, respondent filed an amended complaint alleging an oral extension of the written lease. The parties in the trial of the cause took the position that the cause turned upon whether there was a valid extension of the term of the lease, it being the theory that, if the lease was extended, the terms of payment for the services, for which the action was brought, were determined in the lease. We will, therefore, consider whether there is sufficient evidence of a valid extension of the written lease for another year, there being no controversy with respect to the work done or the sum to be paid for the work.

The lease contained neither option nor provision for an extension. Its term began October 1, 1919, and ended October 1, 1921, thus extending over the crop seasons of 1920 and 1921. It contained the provision hereinbefore quoted that the lessee would surrender the premises at any time a sale thereof was made, upon payment by the lessor of the agreed price for plowing, harrowing, disking, etc. The provision for paying for any plowing, harrowing, disking, etc., that the tenant might have done, in case of sale, was necessarily limited to such plowing, harrowing, disking, etc., that the tenant might have done in preparation for the raising of crops during either of the two crop seasons contemplated, to wit: 1920 and 1921. There was no plowed ground on the land when respondent acquired his leasehold and there was no provision in the lease that any part of the premises should be plowed upon the expiration of the term of the lease. Had respondent grown a crop on this land during the crop season of 1921, and had plowed, harrowed, disked, etc., the land after the harvest of 1921, he would not have been entitled under the lease, to pay for such work done by him after he had harvested the crop in 1921. The lease contained a provision giving respondent the option of summer-fallowing the land during the crop season of 1920. However, he grew a crop on the land during the season of 1920....