Morey v. Feltz

• Decision Date: 02 February 1915
• Docket Number: No. 13801.,13801.
• Citation: 173 S.W. 82
• Parties: MOREY v. FELTZ.
• Court: Missouri Court of Appeals

173 S.W. 82

MOREY v. FELTZ.

No. 13801.

St. Louis Court of Appeals. Missouri.

February 2, 1915.

Appeal from Circuit Court, Perry County; Peter H. Huck, Judge.

Action by Margaret A. Morey against Grover C. Feltz. Judgment for plaintiff for insufficient relief, and she appeals. Reversed and remanded.

Edward Robb, of Perryville, for appellant. John V. Noell and Charles P. Noell, both of Perryville, for respondent.

ALLEN, J.

Plaintiff leased to defendant a farm consisting of approximately 137½ acres of land, by a written instrument of date April 9, 1910, for a term of four years, beginning August 1, 1910. It appears that the premises consist of lowlands lying in what is known as "Bois Brule Bottom," in Perry county, about a mile from the Mississippi river. The lease, which is a very informal instrument, provides that plaintiff, the party of the first part, rents and leases the farm to the defendant, party of the second part, for the above-mentioned term, "in consideration hereafter mentioned." Then follow these pertinent provisions:

"Second party to pay one-third of the wheat delivered at the elevator. The corn, potatoes, and pasture and hay land the second party is to pay five dollars per acre, oat land at four and one-fourth dollars per acre; all of said rents to be paid on or before the first day of August annually. * * * It is further understood between the parties hereto that in case of overflow or destruction by water, any crops not entirely destroyed one-third on the premises will be required as rent."

A further stipulation is to the effect that the lessee will make certain repairs and do other work upon the premises, for the lessor, at 75 cents per day.

This action is for cash rents claimed to be due for the first year, from August, 1910, to August, 1911, aggregating $560.48. The answer is a general denial, coupled with which is a counterclaim for $9.84 for labor, and certain small items of materials furnished.

The cause was tried before the court and a jury, and the latter returned the following verdict:

"We, the jury, find the issues in this cause in favor of plaintiff, Margaret A. Morey, and that the defendant, Grover C. Feltz, is indebted to her in the sum of $398, and one-third of the oats, and we assess the costs against the plaintiff."

Thereupon plaintiff's counsel suggested to the court that the verdict should be corrected, and the court told the jury that they could not assess the costs, and had them return to the jury room to correct their verdict. And thereafter, the jury not reporting promptly, the court sent them a written instruction telling them that they had "nothing to do with the assessment of the costs." Thereupon the jury returned a verdict for plaintiff for $246 "and one-third of the oats." Judgment was entered upon this verdict, and the plaintiff appealed.

The bill of exceptions before us is in the nature of a skeleton bill, with but a brief summary of the testimony adduced. Plaintiff's testimony, in chief, is to the effect that there were 78 9/10 acres of corn land on the farm, 70 acres of which defendant planted in corn, the remainder being left uncultivated; that 26¾ acres were in oats, and 15/7 acres in alfalfa; and that there were 9¾ acres of pasture lands.

Defendant's evidence tended to prove that there was a great amount of rainfall upon the leased premises in the early spring of 1911; that on April 30, 1911, a heavy rain fell, flooding a large portion of the corn land, and destroying nearly all of the oats on a tract consisting of 24¾ acres. Defendant testified that the water stood upon a large portion of the corn land for two or three weeks, rendering the same unfit for cultivation for three weeks, and delaying the planting of his corn. Other witnesses for defendant testified that the water stood on the lower land for a week or ten days. And defendant's evidence is that, because of the wet condition of the land, the corn was damaged by worms, and that, on account of the late planting thereof, it was late in maturing and was injured by frost; that worms and frost destroyed about one-half of the corn. Defendant's testimony is further that the 9¾ acres, for which plaintiff claims rent at the rate of $5 per acre, as being pasture land, was uncleared land with neither grass nor water upon it; and testimony of witnesses present at the execution of the lease was admitted to show that this land was not regarded by the parties as pasture land, and that it was not intended that defendant pay rent therefor.

Plaintiff's evidence in rebuttal is to the effect that defendant was not delayed in planting his corn crop by any flooding of the premises; that the water from the rainfall of April 30, 1911, which it is said stood in the "swags or sloughs," ran off in a few days, and that because of the subsequent dry season the best corn was raised in these low places; and that only a small portion of the crop of oats was injured by water.

In all 11 instructions were given, and 2 requested by plaintiff were refused. The questions involved, however, may be disposed of without setting out these instructions.

I. It is clear that the judgment entered upon the final verdict of the jury cannot stand; and this regardless of whether or not that part thereof referring to the oats may be treated as surplusage. The jury may not be permitted to assess the costs against the plaintiff, the prevailing party; and it appears that this is what the jury persisted in attempting to do. Upon finding that the costs could not be assessed against plaintiff in the verdict, the jury proceeded to deduct $152 from the amount which they had previously found to be due plaintiff, thereby evidently attempting to do indirectly that which they could not do directly. But this is not all. The suit is for such money rent as plaintiff may be entitled to under the terms of the lease; and a verdict of $246 is wholly unresponsive to the issues before the jury....