McCracken v. Schuster

• Decision Date: 01 November 1915
• Docket Number: No. 11701.,11701.
• Citation: 179 S.W. 757
• Parties: McCRACKEN et al. v. SCHUSTER.
• Court: Missouri Court of Appeals

179 S.W. 757

McCRACKEN et al. v. SCHUSTER.

No. 11701.

Kansas City Court of Appeals. Missouri.

November 1, 1915.

Appeal from Circuit Court, Harrison County; George W. Wanamaker, Judge.

"Not to be officially published."

Suit in unlawful detainer by Ellen McCracken and others against Fred Schuster. Judgment for plaintiffs, and defendant appeals. Reversed, and cause remanded for new trial.

Du Bois & Miller, of Grant City, for appellant. O. B. Hudson, of Grant City, for respondents.

TRIMBLE, J.

This is a suit in unlawful detainer, wherein it is charged that defendant's tenancy of a certain farm of 120 acres terminated on March 14, 1914, but that he willfully and unlawfully held over and detained the same after that date and after demand in writing for the delivery thereof.

The defense was that no tenancy existed between him and plaintiffs, but that defendant was a mere subtenant under one, Frank Hass, to whom the farm had been leased. The land in question was owned by plaintiffs and their father, Alexander McCracken. The latter, acting for himself and as agent for plaintiffs, made a verbal contract to sell the land to Frank Hass for $7,200 some time in the latter part of the year 1911. Owing to the discovery of the fact that a part of the land at least stood in the name of a deceased unmarried brother of plaintiffs and son of Alexander McCracken, and that no administration was had on his estate, Hass refused to pay for and accept a deed to the land until an administration should be had on said deceased's estate. Thereupon Alexander McCracken, acting for himself and as agent for the other owners, made a written lease to Hass for a term beginning March 1, 1912, and ending March 1, 1913, wherein Hass agreed to pay $360 rent for said term, payable January 1, 1913. It was also recited therein that McCracken had agreed to sell the farm to Hass at $7,200 and Hass had agreed to buy on condition that the title was perfected, and that, when this was done, the money paid as rent should be treated as a payment on the purchase price and deducted from the $7,200. It seems that all parties then thought that an administration on the deceased's estate could be had and closed in a year under the new law, providing that such can be done within that time. And Alexander McCracken immediately took out letters of administration thereon. However, before the end of the administration year, Hass objected to the estate being closed up in one year on account of some defect in the giving of the notice of grant of letters. (It seems that said notice allowed two years for creditors to present their claims instead of one.) And the probate court refused to allow it to be closed in one year on this account. Consequently, long before the expiration of the term called for in the written lease, both McCracken and Hass knew that the defect in the title could not be cured, nor the trade consummated, within the time contemplated by the parties at the time the lease from March 1, 1912, to March 1, 1913, was made. Under the lease, Hass had sublet to the defendant Schuster, and he went into possession.

In September, 1912, Hass and Schuster met McCracken in James Anderson's law office in Grant City and made a verbal arrangement for the renting of the farm for the year beginning March 1, 1913, and ending March 1, 1914. And here is where the disputed tenancy in question in this case arises. It is the contention of plaintiffs that in this conversation McCracken, at the suggestion of Hass, made a verbal lease of the land to Schuster. On the other hand, it is defendant's contention that there was no renting contract entered into between McCracken and Schuster, but that McCracken rented the land to Hass by verbally agreeing to extend the terms of Hass' written lease for another year. It is thus seen that both sides agree that a new contract was entered into verbally, the only difference in the contention being that plaintiff's claim is that McCracken rented the land to Schuster for the term ending March 1, 1914, while Schuster claims McCracken merely extended Hass' tenancy for another year, and that he, Schuster, in turn rented a part of the land from Hass. This clearly illustrates the difficulty men get themselves into by verbally making contracts extending over so long a time, instead of making them certain by having them reduced to writing.

The case was taken by change of venue from Worth to Harrison county and there tried before a jury, which returned a verdict finding defendant guilty and assessing plaintiffs' damages at the sum of $120 and the value of the monthly rents and profits at $30. Defendant has appealed.

Defendant very earnestly contends that the undisputed facts show that plaintiffs are not entitled to recover. But this is clearly untenable. In the first place, defendant asked no demurrer to the evidence, but joined in submitting the case to the jury. In the next place, we do not agree with defendant that the written lease between McCracken and Hass provided that the latter should go on indefinitely year after year renting the land at $360 per year until the vendors should be able to present a title satisfactory to vendee, or which he would be willing to accept, and then allow him to credit all of the prior years' rent on the purchase price. The lease, by its explicit terms, was to end March 1, 1913. There was no provision therein calling for a tenancy beyond that date. Consequently it cannot be said that McCracken had no right to make a new renting thereafter to Schuster. Indeed, Hass, who testified for defendant, says that McCracken, at the meeting...