Mau v. Rice Bros.
| Decision Date | 20 June 1933 |
| Docket Number | No. 41582.,41582. |
| Citation | 216 Iowa 864,249 N.W. 206 |
| Parties | MAU v. RICE BROS. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Woodbury County; R. A. Oliver, Judge.
Plaintiff leased a tract of land to Adolph Lenz for a period of five years. The first year's rent was paid. The rent of the second year remained unpaid. During the second year Lenz shipped a large number of hogs, which were born and raised on the leased premises, to defendant, a partnership engaged in the sale of live stock at Sioux City, where the same were sold on a commission basis by the defendant. This action was brought to recover for the conversion of the hogs. The case was tried to a jury, which returned a verdict for plaintiff for the amount of the unpaid rent of the second year. A motion for a new trial was overruled, and defendant appeals.
Affirmed.Herbert W. Brackney and Donovan W. Burington, both of Sioux City, for appellant.
W. E. Kahler, of Denison, and Naglestad, Pizey & Johnson, of Sioux City, for appellee.
[1] I. In two paragraphs of the copy of the lease attached to the petition, the terms “lessee” and “lessor” were interchanged, wherever used. During the trial of the case this error was discovered, and the petition was amended by substituting a correct copy of the lease in lieu of the incorrect copy attached to the pleading as an exhibit. Appellant complains of the action of the court in permitting the amendment to be filed. No prejudice could result to appellant from the amendment, as the paragraphs in which the errors occurred, related to matters entirely immaterial to any issue on trial. The amendment was properly permitted.
[2][3] II. In the original petition it was alleged that the appellant was a corporation. Upon the trial it developed that appellant was a partnership. When this fact was disclosed, appellee asked leave to amend the petition by striking the allegation that appellant was a corporation and pleading in lieu thereof that it was a partnership. The court permitted the amendment. The appellant filed an answer denying generally the allegations of the petition and setting up a number of special defenses but which contained no allegations in relation to the capacity of the appellant, Rice Brothers. Corporate or partnership capacity on the part of a plaintiff or defendant may be alleged generally. Code, § 11207. It has been held that failure to allege the capacity of plaintiff, as a corporation, is not fatal to the maintenance of a suit. M. Schultz Co. v. T. P. Griffith, 182 Iowa, 650, 166 N. W. 101. Regardless of whether appellant was a corporation or a partnership, it was a legal entity, and action could be maintained against it. The entity was in court. It had answered, and had not questioned the allegations in relation to its capacity as required by Code, § 11208, if it felt aggrieved by the allegations as to its capacity. Whatever its character might be, a judgment could be rendered against it and such judgment would be binding on the entity in court. Stokes v. Gollmar Bros., 163 Iowa, 530, 145 N. W. 59. In view of the fact that appellant did not question the allegation of corporate capacity and that the judgment would be binding upon it, whatever its capacity, no prejudice could possibly result from the amendment to the petition conforming the allegations to the proofs.
III. Upon the trial of the case the court sustained objections to questions asked by counsel for defendant tending to show that plaintiff was not the owner of the land, and complaint is made of this by appellant on the theory that if the plaintiff did not own the land he would not have a lien upon the hogs in question. The ultimate question presented by the objection is whether one who is not the owner of real property can contract with another in relation to it in such manner that the relationship of landlord and tenant is created. In the case at bar the tenant entered into possession of the leased property under and by virtue of his contract with plaintiff, and if it is legally possible, there is no question but what the relationship of landlord and tenant existed between plaintiff and Adolph Lenz. In 35 C. J. p. 1210, § 537, it is said:
[4][5][6] It is generally held by the courts that a tenant is estopped from denying his landlord's title. Beck v. Minnesota & Western Grain Co., 131 Iowa, 62, 107 N. W. 1032, 7 L. R. A. (N. S.) 930;Taylor v. Olmstead, 201 Iowa, 760, 206 N. W. 88;Cheyne v. Quackenbush, 198 Iowa, 420, 199 N. W. 367. Such cases recognize the fact that the relationship of landlord and tenant is not dependent upon ownership of the land by the landlord. Under the contract with plaintiff, Lenz entered into possession of the land. The contract purports to be, and is, a lease. In this situation the relation of landlord and tenant was undoubtedly created by the contract, with all the incidents usual to such relations. The question of the ownership of the land was irrelevant and immaterial to any issue on trial.
[7][8] IV. In the petition plaintiff pleaded that he had a lien on the hogs by virtue of his contract and that he also had the statutory landlord's lien. A motion was made by the defendant to require plaintiff to elect whether to stand upon the statutory or the contractual lien. This motion was properly overruled by the trial court. It has been held that a contractual lien is not inconsistent with the statutory landlord's lien. Pickler v. Lanphere, 209 Iowa, 910, 227 N. W. 526. Such being the case, plaintiff was not required to elect upon which lien he would rely. Halstead v. Rohret, 212 Iowa, 837, 235 N. W. 293. In any event, appellee was seeking to recover damages for but a single invasion of his rights in the...
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