Munier v. Zachary
| Decision Date | 14 January 1908 |
| Citation | 114 N.W. 525,138 Iowa 219 |
| Parties | THEO. MUNIER, Appellant, v. A. E. ZACHARY |
| Court | Iowa Supreme Court |
REHEARING DENIED, SATURDAY, APRIL 11, 1908.
Appeal from Linn District Court.-- HON. WM. G. THOMPSON, Judge.
ACTION to recover damages for the conversion of straw removed by defendant, plaintiff's lessee, from the leased premises in violation of a covenant in the lease. There was a verdict for the defendant, and from a judgment thereon plaintiff appeals.-- Affirmed.
Affirmed.
Voris & Haas, for appellant.
W. F Fitzgarrald, for appellee.
Under a lease for five years ending March 1, 1905, the defendant went into possession of plaintiff's farm, and continued in occupation thereof as tenant until the expiration of the term. The lease was in the usual form of printed farm leases, but contained written therein on a blank line these words, "No straw to be removed from the farm." Plaintiff alleged that notwithstanding this express stipulation the defendant did, in August, 1904, "take, remove, and carry away from the said premises, and convert to his own use, straw raised and grown upon said premises, to-wit, thirty tons, and of the aggregate value of, to-wit, $ 120," and judgment for that amount was asked against defendant. The defendant admitted the execution of the written contract of lease, and "that he removed from the said premises not to exceed eight tons of straw, for his convenience in the care and use of the same, which he had a right to do," and alleged that "the plaintiff had no interest in the straw, except that it was to remain and be consumed on the farm, so that the remnants and rotten remains of the same would stay on the land and serve to fertilize the same." By amendment to his answer defendant averred an offer to return the straw, which plaintiff refused.
I. On the issue as to an offer to return, the court instructed the jury that such offer made before suit was brought and refused by plaintiff would defeat plaintiff's action, and necessitate a verdict for the defendant. This instruction was clearly erroneous. After the conversion of property has become complete the wrongdoer cannot escape liability nor lessen the actual damage recoverable, by a tender back of the property. Colby v. Kimball Co., 99 Iowa 321, 68 N.W. 786; Cernahan v. Chrisler, 107 Wis. 645 (83 N.W. 778); Railroad Co. v. O'Donnell, 49 Ohio St. 489 (32 N.E. 476, 21 L. R. A. 117, 34 Am. St. Rep. 579); Carpenter v. Dresser, 72 Me. 377 (39 Am. Rep. 337); Hanmer v. Wilsey, 17 Wend. 91; Carpenter v. American Building & Loan Ass'n, 54 Minn. 403 (56 N.W. 95, 40 Am. St. Rep. 345).
There can be no question that plaintiff's action was for conversion and not for damages for breach of covenant. Plaintiff expressly alleges the taking, carrying away, and conversion of the straw, and defendant admitting the act questions only plaintiff's right to recover, insisting as a reason why there should be no recovery that plaintiff had no interest in the straw save to have it remain upon the farm. This was the theory on which the case was submitted to the jury; for the court instructed that if plaintiff established by a preponderance of evidence that defendant converted the straw without plaintiff's consent the jury should find a verdict in plaintiff's favor for the value of the straw converted. The court therefore plainly erred in authorizing a verdict for defendant on the evidence, which the court assumed to be sufficient to support a finding that defendant offered to return the straw.
II. It is contended, however, for the appellee that, even if the instruction be found erroneous, there should be no reversal for the reason that plaintiff did not allege or prove a conversion, and was not therefore entitled to recover. If under no view of the case a recovery by plaintiff was authorized, then we may properly affirm the judgment, notwithstanding the error in the instructions; for it would be useless to go through the formality of remanding the case for a new trial without any possibility that a recovery in favor of appellant could be sustained. Schaefer v. Anchor Mut. F. Ins. Co., 133 Iowa 205, 100 N.W. 857; Voorhees v. Arnold, 108 Iowa 77, 78 N.W. 795; Whiting v. Root, 52 Iowa 292, 3 N.W. 134; Jamison v. Perry, 38 Iowa 14; Dawson v. Wisner, 11 Iowa 6. Plaintiff, suing for a conversion, must show at least a possessory right in the property alleged to have been converted, and if he has no right or title whatever he cannot recover. It is to be borne in mind that at the time defendant is alleged to have taken the straw in question from the leased premises he was in full occupation and enjoyment of the premises as tenant, with a right to continue in such occupation and enjoyment for more than six months. It cannot be questioned that during that time he had the sole and exclusive ownership of the straw, with the right to do with it whatever he should see fit, to feed it to his stock, use it for bedding, or otherwise destroy it as straw, subject only to the obligation to answer in damages for a violation of his covenant not to remove it from the farm. The object of the stipulation no doubt was to have it consumed on the premises in the usual methods of farming, in order that the farm should have the benefit, which would accrue to plaintiff after the termination of the lease, of the manure which would result from its ordinary use. Lewis v. Lyman, 22 Pick. 437.
It is generally held that manure produced during the tenancy becomes a part of the premises and cannot be removed by the tenant. Taylor, Landlord and Tenant, section 541; Brigham v. Overstreet, 128 Ga. 447 (57 S.E. 484, 10 L. R. A. [N. S.] 452). Straw from which the grain has been threshed is not, however, in itself manure, but is a part of the crop, and belongs to the tenant in the same way and to the same extent as the grain, and its ownership is not controlled by any custom that the landlord is entitled to the straw, unless such custom has in some way become a part of the contract. Craig v. Dale, 1 Watts & Serg. 509 (37 Am. Dec. 477); Iddings v. Nagle, 2 Watts & Serg. 22; Rank v. Rank, 5 Pa. 211. Even if there is a stipulation that the hay or straw produced on the...
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