Lunn v. Kaiser, 9526-

• Decision Date: 07 October 1955
• Docket Number: No. 9526-,9526-
• Citation: 76 S.D. 52,72 N.W.2d 312
• Parties: A. S. LUNN, Plaintiff and Respondent, v. Frederick KAISER, Defendant and Appellant. r.
• Court: South Dakota Supreme Court

Page 312

72 N.W.2d 312

76 S.D. 52

A. S. LUNN, Plaintiff and Respondent, v. Frederick KAISER, Defendant and Appellant.

No. 9526-r.

Supreme Court of South Dakota.

Oct. 7, 1955.

Parnell J. Donohue, Bonesteel, for defendant and appellant.

G. F. Johnson, Gregory, for plaintiff and respondent.

RUDOLPH, Presiding Judge.

This action was brought to cancel an agreement wherein plaintiff leased to defendant certain farm land in Gregory County. By the terms of the agreement each of the parties were to furnish certain cattle, hogs and chickens for the operation of the farm and business. The defendant was to furnish the machinery and perform all labor. Each party was to share equally in the proceeds from the livestock and farming operations. The agreement covered the period from March 1, 1954 to March 1, 1956. This action was brought in January 1955. The trial court entered a judgment cancelling the lease and dissolving the relationship created thereby. The defendant has appealed.

The record discloses that the farming and livestock business conducted under the agreement was highly successful financially for each of the parties. Plaintiff's evidence establishes that defendant was a good farmer and capable in handling the livestock. There is no evidence of fraud or dishonesty on behalf of either party.

It appears that plaintiff owned and operated this land for many years. Prior to 1954 his health had failed and he wished to relieve himself of the work involved in conducting the farm. There are two houses on the farm located about 150 feet apart. Plaintiff lived in the house referred to as the west house. The east house was to be remodeled, and the agreement provided that defendant should move into this east house with the right reserved to plaintiff to change houses when he so elected. Defendant and his family lived in the east house while it was being remodeled, and in the fall of 1954 upon request of plaintiff the exchange of houses was made.

There was no difficulty between these people until May when at the suggestion of plaintiff some sows were moved for weaning purposes. After moving the sows defendant complained about it, and plaintiff testified that thereafter their relationship changed. An argument was had over furnishing certain milk cows, and in the fall the 'shop' incident occurred. Under the terms of the agreement the 'shop' was reserved for the personal use of plaintiff. It appears that the building consists of an enclosed part in which plaintiff kept his tools and other equipment generally regarded as a part of a farm shop. The other part of the building while covered with a roof is open and used to store machinery when not in use. In the fall defendant ran his tractor into this storage part. The plaintiff complained, said that was a part of the 'shop' reserved to him under the contract, and ordered defendant to remove the tractor. Defendant refused and when plaintiff started to remove the tractor he was restrained by defendant grabbing him by the jacket. There was also an argument about changing the pasture, and defendant invited plaintiff to take off his glasses. The evidence also discloses several minor incidents such as arguments about walking across the lawn, the amount of cream furnished plaintiff, the pounding on the house being remodeled while defendant's children were asleep, and perhaps other similar incidents.

It may be conceded that the relationship between the parties was not that of bosom friends but nevertheless the purpose for which the contract was entered into succeeded and the personal animosity, if such it...