Lauderdale v. King

• Decision Date: 31 March 1908
• Citation: 109 S.W. 852,130 Mo. App. 236
• Parties: LAUDERDALE v. KING.
• Court: Missouri Court of Appeals

109 S.W. 852

130 Mo. App. 236

LAUDERDALE v. KING.

St. Louis Court of Appeals. Missouri.

March 31, 1908.

1. APPEAL — REVIEW — ESTOPPEL TO ALLEGE ERROR—INVITED ERROR—INSTRUCTIONS.

Under the rule that a party is not entitled to ask instructions presenting different theories, and then complain that the court refused to adopt both theories, a party suing on a contract who requested an instruction that the adverse party was not bound to an exact compliance with the stipulations thereof, but could recover on a counterclaim on his showing a substantial compliance, could not complain of the refusal of instructions based on an inconsistent theory or of the giving of an instruction after its modification by the court so as to correspond with the theory as embodied in the requested instruction.

2. TRIAL—VERDICT—SEPARATE ISSUES—COUNTERCLAIM.

In an action on rent notes in which a counterclaim was interposed, the verdict that the value of the claim relied on to establish a counterclaim was equal to the amount of the notes, and finding the issues for the tenant, was sufficient as against the objection that it did not make separate findings on the petition and counterclaim.

3. LANDLORD AND TENANT—ACTION FOR RENT —EVIDENCE—ADMISSIBILITY.

Where, in an action on rent notes, the tenant counterclaimed on the theory that he was entitled to recover the profits a berry patch would have yielded during designated years had he been permitted to remain in possession as tenant for those years, evidence of a partial destruction of the berry crop in one of the years from an overflow, and of the actual yield in the other year, was admissible to rebut the proof of what the patch would have produced in such years.

4. EVIDENCE—PAROL EVIDENCE—APPLICATION OF TERMS TO SUBJECT-MATTER.

Where a lease binding the tenant to put in strawberries a strip of land lying south of a clover patch did not describe the strip, and there were two strips either of which would answer the description, parol evidence was admissible to show the strip intended.

5. LANDLORD AND TENANT—ACTION FOR RENT —COUNTERCLAIM—EVIDENCE—ISSUES.

In an action on rent notes, the tenant interposed a counterclaim on the theory that he was entitled to recover the profits a berry patch would have yielded if he had been permitted to remain in possession of the land as tenant. The evidence was conflicting on the issue whether the tenant planted berries on the strip designated in the lease. Held, that if the tenant planted the berries on the strip called for in the lease he was entitled to recover on his counterclaim, but otherwise not.

Appeal from Circuit Court, Barry County; F. C. Johnston, Judge.

Action by S. H. Lauderdale against A. A. King. From a judgment for defendant, plaintiff appeals. Reversed and remanded.

D. S. Mayhew, for appellant. T. P. Steele, for respondent.

BLAND, P. J.

The action was commenced before a justice of the peace, and in due course reached the circuit court by appeal, where, on a trial de novo, verdict and judgment were for defendant. The controversy arose out of the following contract entered into by the parties on July 29, 1903:

"Article of agreement, made and entered into by and between S. H. Lauderdale, party of the first part, and A. A. King, party of the second part. Witnesseth: That the first party S. H. Lauderdale, has this day rented to said A. A. King, the east half of the north-east quarter of section 33, township 24, range 28, for the sum of $120, $60 to be paid August 15, 1904, and $60 to be paid Jan. 1, 1905. All wheat, oats and corn, to be subject to levy and sale for the payment of one note dated July 29, 1903, for $60, and one note for $60 dated July 29, 1903, and made payable on Jan. 1, 1905. The said A. A. King agrees and binds himself to sow in wheat the north side of the northeast quarter of said land, the same being 29 acres. All the land now in corn to be sowed in oats, cow peas and potatoes. All the valley land to be put in corn, and the land lying south of the clover to be put out in strawberries, which the said party of the first part agrees to pay said A. A. King for in case he sells said farm, or refuses on his part to rent the said land to A. A. King longer than one year. If the said S. H. Lauderdale and A. A. King cannot agree as to the worth of the strawberries, each one is to pick a man and they are to pick a third man to say what the berries are worth. But in case said S. H. Lauderdale rents to A. A. King the farm for three years, the berry patch is the property of the party of the first part. The said A. A. King binds himself to give possession at the expiration of the first year without notice and further agrees that in case the said land is not rented to him for the year 1905, that he gives the said S. H. Lauderdale the right to enter on said land and plow for wheat August 1st. It is agreed that A. A. King is to have all strawberries grown on the land until October 15, 1906, then to turn said land over to S. H. Lauderdale. But it is further agreed that S. H. Lauderdale has the right to sell said farm or rent to any other party after the fifteenth of October, 1904, he paying A. A. King for said berries as before stated. A. A. King to gather all crops without hindrance," etc.

Defendant set about an acre in strawberries in the fall of 1903. Plaintiff sold his farm in July, 1904. He refused to agree on the value of the strawberry patch, or to arbitrate, as provided in the contract. Defendant refused to pay the rent notes, hence this suit by plaintiff to recover on the notes, and a counterclaim by defendant for the value of the strawberries. The questions of fact controverted on the trial are, first, the value of the strawberries; and, second, whether or not they were set where it was stipulated in the contract they should be set. Defendant's evidence shows the strawberry plants were set south of the clover patch, on a small strip of cleared land, and tends to show that...