Kunz v. Nelson

• Decision Date: 23 February 1938
• Docket Number: 5912
• Citation: 94 Utah 185,76 P.2d 577
• Court: Utah Supreme Court
• Parties: KUNZ v. NELSON et al

76 P.2d 577

94 Utah 185

KUNZ v. NELSON et al

No. 5912

Supreme Court of Utah

February 23, 1938

Appeal from District Court, Third District, Salt Lake County, P. C. Evans, Judge.

Action for possession of personalty and damages for its retention by R. L. Kunz against Ella F. Nelson and Lawrence E. Nelson. From a judgment on a verdict for plaintiff, defendants appeal.

REVERSED AND REMANDED, with instructions.

Irvine Skeen & Thurman and A. U. Miner, all of Salt Lake City, for appellants.

Gaylen S. Young, of Salt Lake City, for respondent.

WOLFE Justice. FOLLAND, C. J., and HANSON, MOFFAT, and LARSON, JJ concur.

OPINION

WOLFE, Justice.

This is an appeal from a judgment entered in pursuance of a jury verdict for damages found due because of the claimed withholding by defendants of the plaintiff lessee's share of certain crops. By a lease, dated April 11, 1936, Ella F. Nelson leased to R. L. and Morris Q. Kunz her farm containing between sixty and seventy acres. Then follows a specific description, after which comes the following language:

"This lease does not include the pasture land in the bottoms nor the lot on which the house stands; neither are any building, silos nor grounds around buildings or silos included. The cabin the lessee may use to live in during the life of this lease. Lessee to pay for all electric power used. The lessee agrees to irrigate shrubs and trees by the house.

"The lessee agrees to cultivate and harvest the crops raised on said farm in husbandlike manner. All crops harvested to be stored on said farm unless otherwise agreed to by the lessor. No smoking in or around buildings, hay, grain or straw.

"The lessee may use all implements on the farm necessary to procure and harvest the crops; ordinary wear and tear excepted; the lessee agrees to be liable for all breakage caused by negligence. It is understood there is no grain drill, nor marker on the farm. No machinery or implements to be taken away.

"The lessee shall receive one half (1-2) of all crops harvested; it is understood that the seed and costs of threshing shall be deducted before dividing the grain.

"The lessee further agrees to haul on farm manure in sheds and around barn. All cockleburrs are to be kept off portions leased, by the lessee.

"This lease to terminate October 15, 1936."

The italicized portions are the parts of the lease which have a more direct bearing on the issues involved. Morris Q. Kunz assigned his interest in the lease to his brother, the plaintiff, on July 3, 1936. The lessees went into possession and planted about twenty acres to barley and wheat, harrowed the alfalfa and irrigated. The first crop of hay, consisting of about thirty-six loads, was divided and plaintiff removed his share without protest. Early in August the second crop of hay was measured off by Mr. Nelson and plaintiff. Plaintiff sold three and one-half tons of his share of this crop, after which the balers came and baled the remainder of his portion up to 126 bales. At this point Mr. Nelson and an officer came and admonished plaintiff not to remove anything from the place. It appeared by the evidence at the trial that Nelson, who uncontrovertedly represented his wife, the owner of the land and lessor, asked Kunz not to move his share of the hay because "uncertainties had arisen." He claimed at the trial that a vise was broken, that the carrier on the binder was broken off, and that $ 2.50 was owing on the power bill. He was apparently holding the crops until a settlement of these items was made. But at the time Nelson told Kunz not to remove anything from the place, according to the latter, Nelson would not state the reason. Testifies Kunz: "I asked him what the idea was, what his reasons were, and what he had in mind. He says he wasn't quite ready to tell me, I would find out soon enough." The same evening Kunz sent out a truck to get the baled hay, but the Nelsons refused to permit it to be removed. The two men who accompanied the truck to get the hay testified that an officer told them to get off the place or he would put them in jail. On September 12th, Young, counsel for plaintiff, wrote Nelson, stating that Kunz would carry to completion the lease with Mrs. Nelson, but that he, Young, was to receive all of Kunz's one-half of the crops. The letter stated, "I will appreciate it if you will get together with Mr. Kunz and make a division of the crops already harvested so I can dispose of the same. I realize that the lease provides that the crops are to be stored on the farm. This I understand was meant to be until a division was made. At any rate, whatever construction you may take of the lease, I am asking you now as a representative of your wife to kindly let me have hauled off from the farm 1/2 of the crops that have been harvested and are in proper condition to be divided." After the letter was written, Mr. Young called over the telephone and came down to the farm to see Nelson to see if a division could be had. Nelson said "no." Nelson had the grain threshed and retained possession. Both the Nelsons evidently took the position that the lease should be construed to mean that the crops should be stored on the farm until the termination of the lease, which was October 15th; also that she had a lien on Kunz's half of the crop until a settlement of claimed damages and payment of the power bill. Kunz took the position that the crops were to be stored on the farm "only pending a division and that such division should be made expeditiously after harvesting."

The lease did not say the crops were to be stored on the premises until October 15th. The lease terminated October 15th. It did say that "all crops harvested to be stored on said farm unless otherwise agreed to by lessor." We see no reason why the general rule that division should be made within a reasonable time is any way modified by the language of the lease. We think the provision above mentioned requires the crops to remain on the land until division and that the landlord or the tenant could demand division within a reasonable time. Caruthers v. Williams, 58 Mo.App. 100. A reasonable time would be with a view to permit the tenant to convert his share of crops into cash in order to meet current obligations. If Mrs. Nelson then had a lien for the charges claimed, a retention of a comparatively small portion of Kunz's share would have protected her. As to whether she had a lien was not argued and we do not decide it. In passing, attention is called to the following cases which hold that the right of lien in statutory and only exists to the extent of and for the claims mentioned in the statute: Wilson v. Stewart, 69 Ala. 302; Few v. Mitchell, 80 Ark. 243, 96 S.W. 983. There is nothing to show that the Nelsons gave Kunz a statement of the items they claimed for damages, etc. From their evidence on the stand, their disposition seemed to be to hold the crops until there was an "accounting" or a "settlement," but, apparently, being in a strategic economic position, they felt that he must make the first move toward settlement. This seemed to be the situation when Kunz, evidently concluding from the circumstances and advice of counsel that he was illegally held out of possession of his share, brought this action. It was started by service of summons on September 28th and complaint filed on October 7, 1936. The charging part of the complaint reads as follows:

"3. That on or about the 24th day of September, 1936 in Salt Lake County, Utah, the defendants then and there being in possession of said goods, unlawfully withheld, and do now unlawfully withhold, the same from the plaintiff and have converted the same to their own use to the damage of the plaintiff in the sum of $ 483.00."

The prayer reads as follows:

"Wherefore plaintiff prays for judgment against the defendants and each of them for the immediate possession of the above described personal property and for damages for its detention; and in case possession of said property is not surrendered to plaintiff then for the sum of $ 483.00, being the value thereof, for costs of this suit and for such other relief as to the court may seem proper in the premises." (Italics added.)

The complaint sounds in replevin according to its prayer, but the court seemingly instructed the jury on the theory that it was an action for damages for conversion, although from the evidence it appeared that some of plaintiff's share of the crops was recoverable in kind at the time of the verdict. The parties treated it as a replevin action. Mr. Young stated to the court, "We are suing, of course, for the recovery of the wheat or its value." And again, "We are either entitled to the return of the property or its value or we are not." In the case of Larsen v. Ryan, 54 Utah 250, 180 P. 178, 180. Mr. Justice Frick states rather ex tempore that the action for damages "under the circumstances, was the only relief to which Larsen was entitled in view that he never attempted to obtain possession of the property by filing the necessary affidavit," etc. A moment's reflection and a glance at the statutes on claim and delivery, Rev. St. 1933, 104-16-1 et seq., will reveal that claim and delivery is only ancillary to an action for possession in order to retain or obtain possession pending the trying out of the rights by the court. While the use of the mechanism of claim and delivery would, if properly ancillary, stamp the action as one of replevin and not of conversion, the absence of such use cannot stamp a possessory action as one for conversion. This action must be treated as for possession and not for conversion.

The defendants next contend that there was no evidence of withholding for the reason that up until the 15th of October plaintiff, being in...