Little v. Laubach

• Decision Date: 27 June 1918
• Docket Number: 31877
• Citation: 168 N.W. 155,183 Iowa 1370
• Parties: O. T. LITTLE, Appellee, v. CHARLES LAUBACH, Appellant
• Court: Iowa Supreme Court

168 N.W. 155

183 Iowa 1370

O. T. LITTLE, Appellee, v. CHARLES LAUBACH, Appellant

No. 31877

Supreme Court of Iowa, Des Moines

June 27, 1918

Appeal from Calhoun District Court.--M. E. HUTCHISON, Judge.

ACTION to recover damages for trespassing animals. Opinion states the facts. Verdict and judgment for the plaintiff. Defendant appeals.

Affirmed.

Healy & Thomas, for appellant.

J. F Lavender and E. C. Stevenson, for appellee.

GAYNOR J. PRESTON, C. J., WEAVER and STEVENS, JJ., concur.

OPINION

GAYNOR, J.

At the time of the happening of the matters hereinafter complained of, the plaintiff was occupying the southeast quarter of the northwest quarter of Section 23, as tenant of one McCloud. The defendant was the owner of, and occupying the northeast quarter of, the northwest quarter of said section. An oral agreement had been entered into between the defendant and McCloud, by which McCloud undertook and agreed to keep up the east half of the fence between the land so occupied, and defendant would keep up the west half. The date of this agreement does not affirmatively appear; but, from the record, we assume that it was made some time before plaintiff went into possession, under his lease from McCloud. A fence was built and maintained on the east half of the dividing line. The defendant Laubach's pasture was immediately north of that portion of the line on which he had agreed to build a fence, and plaintiff's cornfield was immediately south of that portion of the line. Plaintiff entered into possession under his lease, and farmed the land for the years 1915 and 1916. At that time, there was a very deficient and insecure fence on the west half of the line; that is, on that portion of the line which defendant agreed with McCloud that he would keep in repair. So far as this record shows McCloud's portion of that line was not only fenced, but sufficiently fenced. During the year 1916, defendant's cattle came through that portion which defendant had agreed to maintain, and trespassed upon plaintiff's field of corn, and destroyed large quantities of the same. It is to recover for the damages and injury and loss so caused that plaintiff brings this action.

Some facts are not in dispute: First, that the defendant, Laubach, occupied, whether as owner or not, the land immediately north of the plaintiff; that McCloud owned the land immediately south of defendant's and rented the same to the plaintiff for the years 1915 and 1916; that plaintiff went into possession under his lease, and attempted to raise a field of corn on land immediately south of the west half of this line fence; that defendant had a pasture immediately north of this corn field; that, on account of the insufficiency of the fence between the pasture and the cornfield, defendant's cattle broke over onto plaintiff's land and destroyed his corn.

There was a hearing before a jury and a verdict for the plaintiff. Judgment being entered upon the verdict, defendant appeals. The theory of the defendant is, as we gather it, that, conceding he made an agreement with plaintiff's landlord substantially as claimed by the plaintiff, the agreement was purely personal between him and McCloud, and McCloud alone can maintain an action for its breach; that plaintiff cannot recover damages for the breach of an agreement to which he was not a party. Second, that, the agreement not being made in conformity with the statute, it was only binding on the immediate parties to the agreement, and that the breach thereof furnished no basis for any action to one who is not a party to the agreement; that the duty to maintain the fence rested in contract; that the duty created by the contract was to McCloud, and not to the plaintiff; that, therefore, there was no duty owing to plaintiff for a breach of which action will lie, though the plaintiff may have suffered from the breach.

It would not be contended that, if McCloud were occupying the land and defendant failed to keep up his portion of the fence, and the same conditions existed as are here, the defendant would not have to respond in damages to McCloud. But it is contended that this contract was a personal contract between McCloud and the defendant; that the plaintiff has neither pleaded nor proven that it was adopted or acquiesced in as a contract binding between him and the defendant. The thought urged is that, before there can be liability for a breach of a contract, the obligation of the contract must run to the party complaining, and there must be mutuality of obligation; that the plaintiff had never undertaken to maintain, nor done anything to maintain, the east half of this division fence; nor had the defendant, in consideration of any agreement or conduct on the part of the plaintiff, assumed the burden to the plaintiff of keeping the west half in condition: and it is contended that, until there is either acquiescence in the original contract made between McCloud and the defendant, or a new contract, by which both this plaintiff and the defendant become bound, there is no contract, enforceable by either, touching the maintenance of a line fence; that, there being no contract, one was as much bound as the other to keep the whole line in repair, and neither can complain of the other because any portion of the line fence is out of repair: and it is contended that the plaintiff must plead either this new contract between himself and the defendant for the maintenance of the partition fence, or he must plead that each party had acquiesced in the original contract, and become bound by its terms. The plaintiff pleaded simply the contract between his landlord and the defendant, the breach of that contract, and the damages resulting therefrom. Defendant and McCloud made a contract as between themselves, and each became bound to maintain a fence upon a portion of the line between their properties. Each bound himself to maintain a portion of that line: McCloud, the east half, and defendant, the west half. McCloud built his portion of the fence, and then placed plaintiff in possession, under a lease by which plaintiff was to pay as rental a portion of the crop raised upon the land. Defendant failed to build or maintain his portion of the fence, and the crop which plaintiff attempted to raise upon the leased premises was destroyed by defendant's cattle. It appears that plaintiff called defendant's attention to the fact that the fence was insufficient, and that his cattle were trespassing on plaintiff's land and destroying his crops; that the defendant promised to repair the same, saying that he had the posts and wires ready, but was unable to secure time from his own work to discharge the duty which he had assumed under his contract with McCloud.

It is true, under the decisions of this court, that an oral contract, such as we have here, is not binding upon third persons who obtain rights in the...