Lutyen v. Ritchie

• Decision Date: 05 July 1923
• Citation: 37 Idaho 473,218 P. 430
• Parties: W. F. LUTYEN, Respondent, v. S.W. RITCHIE, Appellant
• Court: Idaho Supreme Court

218 P. 430

37 Idaho 473

W. F. LUTYEN, Respondent, v. S.W. RITCHIE, Appellant

Supreme Court of Idaho

July 5, 1923

COMPLAINT-DEMURRER FOR AMBIGUITY AND UNCERTAINTY-INCONSISTENT CAUSES OF ACTION - IMPLIED CONTRACT - USE AND OCCUPATION-MEASURE OF DAMAGES-INSTRUCTIONS-VERDICT.

1. A demurrer to a complaint on the grounds of ambiguity uncertainty or unintelligibility should point out specifically in what respect the ambiguity, uncertainty or unintelligibility exists, or it may be disregarded.

2. Where a complaint is palpably ambiguous and uncertain upon its face, it is not error to sustain a demurrer thereto on the grounds of ambiguity and uncertainty, without further specification.

3. Where one occupies the land of another without any agreement as to the payment of rent, an implied contract arises to pay the fair and reasonable value of the use thereof.

4. In such a case, it is erroneous to confine the measure of damages to a share rental value, where there is evidence of other standards of rent.

5. An instruction which takes from the jury a disputed question of fact, where the evidence is conflicting, is erroneous.

6. A general verdict, where there are two inconsistent causes of action, should specify on which cause the verdict is based.

APPEAL from the District Court of the Fourth Judicial District, for Gooding County. Hon. H. F. Ensign, Judge.

Action to recover rent. From judgment for plaintiff, defendant appeals. Reversed and remanded, with instructions.

Reversed and remanded, with instructions. Petition for rehearing denied.

Bissell & Bird, for Appellant.

The demurrer to the second cause of action should have been sustained on the ground that the same is ambiguous unintelligible and uncertain. (Brown v. Bledsoe, 1 Idaho 746; Phy v. Selby, 35 Idaho 409, 207 P. 1077; Call v. Coiner, 35 Idaho 577, 207 P. 1076.)

The demurrer to the whole complaint should have been sustained on the ground that there is a misjoinder of inconsistent causes of action contrary to our statutes. (C. S., sec. 6688; Kloepfer v. Forch, 32 Idaho 415, 184 P. 477; Phy v Selby, supra; Price v. Mutual etc. Ins. Co., 107 Md. 374, 68 A. 689; Call v. Coiner, supra; Stark v. Wellman, 96 Cal. 400, 31 P. 259; Boulden v. Thompson, 21 Cal.App. 279, 131 P. 765; Smith etc. Co. v. Eckert, 21 Ariz. 28, 7 A. L. R. 995, 184 P. 1001; Allen v. People's Amuse. Co., 85 Ore. 636, 167 P. 272; Clark v. Great Northern R. Co., 31 Wash. 658, 72 P. 477; Ramirez v. Murray, 5 Cal. 222; Gabrilson v. Hague Box Co., 55 Wash. 342, 133 Am. St. 1032, 104 P. 635.)

Instruction No. 23 adopts the wrong measure of damages, in that it permits the jury to measure the damages for the occupation of land by the crops produced, while the proper measure is the reasonable rental value of the land. (Call v. Coiner, supra.)

Where recovery can be had upon only one of two inconsistent causes of action, and the jury returns a general verdict for the plaintiff, and it cannot be determined upon which of said causes the same is based, the judgment entered on such verdict must be set aside. (St. Louis etc. Ry. Co. v. Farmers' etc. Gin Co., 34 Okla. 270, 125 P. 894; Chase v. Knabel, 46 Wash. 484, 90 P. 642, 12 L. R. A., N. S., 1155; Wrought Iron Range Co. v. Zeitz, 64 Colo. 87, 170 P. 181; Denver etc. Co. v. Schafer, 58 Colo. 376, 147 P. 367; Patton v. Wells, 121 F. 337, 57 C. C. A. 551; Warner v. Thomas etc. Works, 105 Cal. 409, 38 P. 960; Goodell v. Pope-Shenon Mining Co., 36 Idaho 427, 212 P. 342.)

James & Ryan, for Respondent.

Occupation and use of premises with the owner's consent without any agreement for the payment of rent creates an implied promise to pay the reasonable rental value thereof. (Von Padua v. American Type Founder's Co., 32 Idaho 710, 187 P. 793; Call v. Coiner, 35 Idaho 577, 107 P. 1076; 24 Cyc. 1139; Gunn v. Scovil, 4 Conn. (Day) 228, 4 Am. Dec. 208; Fitzgerald v. Beebe, 7 Ark. 305, 46 Am. Dec. 285 (note); Dwight v. Cutter, 6 Mass. 142, 64 Am. Dec. 105; 39 Cyc. 851, 852; Hidden v. Jordan, 57 Cal. 184; 39 Cyc. 868, 870; Richmond Wharf etc. Co. v. Blake, 181 Cal. 454, 185 P. 184; Nathan v. Crouse, 24 Colo. App. 32, 131 P. 287; Leyson v. Davenport, 38 Mont. 62, 98 P. 641; Bank of Sun City v. Neff, 50 Kan. 506, 31 P. 1054.)

Objection that complaint is ambiguous, unintelligible or uncertain is waived unless raised by special demurrer pointing out wherein and in what particulars the complaint is ambiguous, unintelligible or uncertain. (Naylor v. Vermont Loan & T. Co., 6 Idaho 251, 55 P. 297; Younie v. Blackfoot etc. Water Co., 15 Idaho 56, 96 P. 193.)

Demurrer for misjoinder of causes of action which does not specify wherein misjoinder exists is insufficient. (O'Callaghan v. Bode, 84 Cal. 494, 24 P. 269; Healy v. Visalia & T. R. Co., 101 Cal. 585, 36 P. 125; Green v. Taney, 7 Colo. 278, 3 P. 423; Owen v. Oviatt, 4 Utah 95, 6 P. 527.)

The court should disregard any immaterial errors in the pleadings which do not affect the substantial rights of the parties. (Sec. 6728, C. S.; Independent etc. Co. v. Knauss, 32 Idaho 269, 181 P. 701.)

Error in overruling a demurrer for misjoinder of causes of action is immaterial if it does not affect the substantial rights of the parties (Angell v. Hopkins, 79 Cal. 181, 21 P. 729; Reynolds v. Lincoln, 71 Cal. 183, 9 P. 176, 12 P. 449; 1 R. C. L. 368.)

GIVENS, Commissioner. McCarthy, Dunn and William A. Lee, JJ., concur.

OPINION

GIVENS, Commissioner.

Plaintiff, respondent, in his first cause of action sued for $ 2,700 and interest from October 1, 1917, on an implied contract to pay rent, growing out of the occupation from 1913 to 1917 of respondent's land by defendant and appellant, there being no agreement for the payment of rent. There was no allegation that the $ 2,700 rent was based upon a cash or share rental basis, or as to the custom upon which rents were based in that community, the only allegation being that the use and occupancy was reasonably worth that sum.

Respondent in his second cause of action alleged an implied contract to pay rent for appellant's occupancy of respondent's premises, permission having been given therefor, because of appellant's fraud and deceit in not having advised respondent, after having agreed to do so, of the true condition of the land and the crops grown thereon. In the second cause of action, respondent alleges a custom in that community to pay rent in one-half the value of the crops grown, and sets forth the value of the crops grown for each respective year from 1913 to 1917, inclusive.

Appellant filed general and special demurrers, the latter upon the ground of ambiguity, uncertainty and unintelligibility, and because two causes of action were improperly joined. The demurrers were overruled and appellant answered, alleging as to the first cause of action that respondent had given appellant permission to occupy the land under an agreement that appellant would not be obliged to pay rent therefor, and further denying that $ 2,700 was the reasonable worth of the occupancy of said premises.

As to the second cause of action, appellant alleged a mutual settlement between the parties, and that appellant was to clear, fence and crop the land for respondent and receive as compensation for his work the crops therefrom, respondent to pay the actual cost. Further, by way of affirmative defense, appellant claimed lawful possession of the land, denied that he had deceived respondent as to the true condition of the land or the crops grown thereon, denied that the customary rental of lands in that vicinity was one-half of the crop, but admitted that it was one-fourth of the crop, denied the amount of crop alleged by respondent to have been grown upon the lands, and alleged that on a rental basis of one-fourth of the crop the reasonable rental value would be only $ 597.50. The appellant also filed a cross-complaint, asking for reimbursement for certain and various sums which he alleged he had spent for and on behalf and for the benefit of the respondent in the improvement of the land in question. The respondent denied the cross-complaint.

The jury returned a verdict as follows:

"We, the jury, being first duly sworn and empanelled in the above-entitled cause, find for the plaintiff and assess his amount of recovery as follows:

"For the year 1913, $ 1.00, with interest at 7% per annum, from October 1, 1913.

"For the year 1914, $ 1.00, with interest at 7% per annum, from October 1, 1914.

"For the year 1915, $ 100.00, with interest at 7% per annum, from October 1, 1915.

"For the year 1916, $ 200.00, with interest at 7% per annum, from October 1, 1916.

"For the year 1917, $ 400.00, with interest at 7% per annum, from October, 1917."

Appellant assigns as error the refusal of the court to sustain appellant's demurrers, the giving of two instructions, the insufficiency of the evidence, and that the verdict being general, did not designate upon which cause of action the same was based.

Appellant's demurrer did not specify wherein the complaint was ambiguous uncertain or unintelligible, and the general rule under C. S., sec. 6690, is that such demurrer must distinctly specify the grounds upon which the objections to the complaint are taken, or it may be disregarded. (Jacobs v. Union Mercantile Co., 17 Mont. 61, 42 P. 109; Berry v. French, 24 Colo. App. 519, 135 P. 985; Stephens v. Parvin, 33 Colo. 60, 78 P. 688; Lacey v. Bentley, 39 Colo. 449, 89 P. 789; Yolo Co. v. City of Sacramento, 36 Cal. 193; Sharpleigh Hardware Co. v. Knippenberg, 133 Cal. 308, 65 P. 621; Younie v. Blackfoot Light & Water Co., 15 Idaho 56, 96 P. 193; Naylor v. Vermont Loan etc. Co., 6 Idaho 251, 55 P. 297.) In the case at bar, however, there is such inconsistency between the two causes of action, and they are...