Martin v. Grant

• Decision Date: 23 February 1932
• Docket Number: 12510.
• Citation: 90 Colo. 300,8 P.2d 764
• Parties: MARTIN v. GRANT.
• Court: Colorado Supreme Court

8 P.2d 764

90 Colo. 300

MARTIN v. GRANT.

No. 12510.

Supreme Court of Colorado

February 23, 1932

In Department.

Error to Pueblo County Court; Frank G. Mirick, Judge.

Action by L. C. Grant against C. L. Martin. Judgment for plaintiff and defendant brings error.

Affirmed.

John A. Martin, of Pueblo, for plaintiff in error.

L. E Langdon, of Pueblo, for defendant in error.

CAMPBELL J.

In April, 1929, plaintiff Grant, owner of farm lands in Pueblo county, gave to the defendant Martin a lease thereof at an annual rental of $1,300, payable in three equal installments. For a failure of the lessee to pay the installment of rent due in August of that year, and after demand upon the defendant for such payment, or possession of the premises and his refusal either to pay, or surrender, plaintiff brought this action to recover possession of the premises and for the past due rent.

In defendant's answer he admits failure to pay the rent past due, but says forfeiture of right of possession does not follow such failure. The answer alleges that this land is a dry farm, and, to produce crops, water must be spread upon it. There are no decreed water rights belonging to it, and water must be pumped upon it from the soil itself or rented or procured from an owner of a water right for irrigation who is able to supply it. These conditions the answer proceeds to state existed and were known by both parties at the time the lease was executed. The answer further alleges that the defendant took possession of the farm shortly Before the first of February, 1929. Theretofore the plaintiff had represented to him that there was no rental water available for irrigating the land, and that a pumping plant on the premises, which is mentioned in the lease, was in serviceable condition and capable of producing sufficient water for the irrigation of crops, which representation was believed by the defendant to be true and relied upon by him; that the pumping plant provided to be defective and was not in serviceable condition, and, although both plaintiff and defendant tried to put the same into workable condition, they were unsuccessful and not until the latter part of June was that result accomplished, and at that time the defendant took the pumping plant to a mechanic in Pueblo who at once repaired it and made it capable of pumping water for irrigation of crops. It was then, however, the answer says, too late to revive the planted crops which had suffered damage for lack of water with which to irrigate the land.

The written instrument of leasing, which is attached as an exhibit to the complaint and made a part thereof, in clause 9 reads: 'It is further mutually agreed between the parties hereto that the lessee shall at all times during the demised term have the right to use the pumping plant now on the demised premises, but said lessee shall pay for all power or electricity used in operating said pumping plant. It being understood that lessee shall rent or pump water sufficient to irrigate all tillable land on the demised premises.'

The plaintiff filed a motion for judgment on the pleadings which consisted of the complaint and answer, which, so far as concerns this motion, are sufficiently above summarized. The question for decision here is whether the answer constitutes a good defense. The trial court held that it did not, and that the alleged defenses of the answer are contrary and repugnant to the provisions of the written lease which, among other things, contains the covenant hereinabove set forth that the defendant will rent or pump water. The defendant cannot now be heard to say that the plaintiff told him there was no water for rent, or that plaintiff represented to him that the pump was in condition to operate, since the lease is silent as to such conditions and no fraud or misrepresentation of facts is charged against the plaintiff in the answer.

The defendant frankly admits in his printed brief that the general rule of law, applicable to the case as made by the complaint and answer, is against him, but asserts that it is within an exception to the general rule. He relies for a reversal upon two general grounds or propositions thus stated:

'1. That where, as in this case, premises are demised for a specified purpose, there is an implied warranty of fitness for the use; and a parol warranty or representation of fitness is not in contradiction of a lease which is silent on the subject.

'2. That the subsequent promises and acts of the plaintiff to put the pumping plant in serviceable condition are admissible as an interpretation of the contract by the parties and of recognition by the plaintiff of his duty and obligation with respect to the condition of the pumping plant in the first instance.'

To the first proposition defendant cites 36 C. J. § 659, p. 44: 'An affirmation made upon the renting of property as to its condition may amount to a warranty, as where it is stated to be of a certain character. When a landlord rents the premises with the distinct understanding that they are in good condition, that becomes a part of the consideration.' This citation is supposed to bear upon, but it is inapplicable to, the alleged oral representations by the plaintiff as to the condition of the pump on the premises that was to be used in the pumping or water. First, we say that there is nothing in the defendant's answer or elsewhere in this record that presents any such case as falls within the scope of the language above quoted. But, aside from this and for even a better reason for holding this proposition no defense to this action, the written lease deals with this very subject or element now in dispute, and its language is clearly to the contrary. The defendant specifically covenants and agrees to pump or rent water sufficient to irrigate all the tillable land. The plaintiff gives to the defendant the right to use the pumping plant then on the premises. The written lease having thus specifically dealt with the subject of irrigating the land and the use of the pump, and the defendant having expressly covenanted either to rent or pump water, he may not now be heard to complain, as he does, that the plaintiff impliedly represented the fitness of the pump.

In Creek v. Lebo Inv. Co., 85 Colo. 357, 276 P. 329 there is an elaborate discussion of the very matter here involved. At page 360 of 85 Col o., 276 P. 329, 330, we said, quoting from Wigmore on Evidence: 'Whether a particular subject of negotiation is embodied by the writing depends wholly upon the intent of the parties thereto. * * * In deciding upon this intent, the chief and most satisfactory index for the judge is found in the circumstance whether or not the particular element of the alleged extrinsic negotiation is dealt with at all in the writing. If it is mentioned, covered, or dealt with in the writing, then presumably the...