Raney v. Thomas
| Citation | 68 S.W. 103,94 Mo.App. 315 |
| Parties | ROBERT G. RANEY, Appellant, v. WM. H. THOMAS, Respondent |
| Decision Date | 29 April 1902 |
| Court | Missouri Court of Appeals |
Appeal from Cape Girardeau Court of Common Pleas.--Hon. John A Snider, Judge.
REVERSED AND REMANDED.
Reversed and remanded.
Sam M Green for appellant.
(1) Tenants, nor their creditors, can defeat the landlord's lien. Knox v. Hunt and Porter, 18 Mo. 244; Sanders v. Ohlhausen, 51 Mo. 163; Selecman v Kinnard, 55 Mo.App. 635; Holt v. Colyer, 71 Mo.App. 280. (2) It was not necessary that any demand should be made for rent. The service of the summons shall be deemed and stand instead of a demand for rent in arrears. R. S. 1899, sec. 4118. (3) Defendant's second instruction is inconsistent with and contradictory to the seventh instruction given for plaintiff, and was therefore calculated to mislead and confuse, and did mislead and confuse the jury. The second instruction is error, for the reason that instructions must not be inconsistent, and the giving of such is error. Heuchen v. O'Bannon, 56 Mo. 289; Stevenson v. Hancock, 72 Mo. 612; Stone v. Hunt, 94 Mo. 475.
L. Caruthers for respondent.
(1) In order to make a case, appellant should have shown the facts stated in his petition and affidavit to be true by a preponderance of evidence, and in case of conflicting evidence, the verdict of the jury should stand. Cleveland v. Crum, 33 Mo.App. 616. (2) This attachment was made prematurely and the verdict of the jury was overwhelmingly sustained by the evidence. Duryee v. Turner, 20 Mo.App. 34. (3) In the absence of any agreement between landlord and tenant, the rent of a farm is due at the expiration of the year. Ostner v. Lynn, 57 Mo.App. 187. (4) A tenant is not prohibited from removing any portion of his crop, when the collection of rent is not endangered or hindered. Haseltine v. Ausherman, 87 Mo. 410; Haseltine v. Ausherman, 29 Mo.App. 451.
--The suit is by attachment for the recovery of rent and is based on the fourth and sixth clauses of section 4123, Revised Statutes 1899. The fourth clause of the section provides that a landlord may have attachment for rent whether due or not, "when he [the tenant] shall in any manner dispose of the crop, or any part thereof, grown on the leased or rented premises, so as to endanger, hinder or delay the collection of the rent." The sixth clause provides that a landlord may attach for rent, "when the rent is due and unpaid, after demand thereof." On trial on the plea in abatement of the attachment, the verdict was for the defendant.
The undisputed facts are that respondent rented some meadow fields of the appellant for the year 1901, agreeing to pay one-third of the hay harvested as rent, and that the respondent, while the harvesting was in progress, or very shortly after its completion, without the knowledge or consent of the appellant, sold and hauled away from the premises four or five wagonloads of the hay.
The parties in their evidence disagree as to some of the terms of the rent contract.
Appellant testified that respondent agreed to harvest and stack the hay, and then to bale it and deliver him one-third of the hay in bales as rent.
Respondent testified that the agreement was that he was to harvest and stack the rent hay on the premises for two-thirds of the crop; that he did harvest it and divided it by the load, making the loads as nearly equal, both as to quantity and quality, as could be, and that he set aside every third load for the appellant and stacked or stored it on the premises to itself, and that it was there when the attachment was served.
The witnesses, who helped respondent harvest the hay, testified that the division of the hay was made as it was hauled out of the fields and that the loads were as nearly equal as they could be made, and that every third load was either stacked or stored on the premises for the appellant.
The appellant was not present while the hauling was going on and had no one present to represent him.
The attachment was sued out on the eleventh day of July and about the time the harvesting was finished.
According to the testimony of respondent, and the persons who helped him harvest the hay, there was in all twenty-three and two-thirds loads. The sale of four or five loads by respondent did not endanger the collection of the rent, if the contract was as respondent swore it was, and if there was a fair and equal division of the hay as it was hauled from the fields and stacked or stored. If, on the other hand, the contract was as appellant testified, the rent hay could not be set apart until it was baled. The principal question in issue on the trial was whether or not respondent was to bale the hay. There was evidence supporting both the appellant's and the respondent's theory of the contract in this respect. It seems to us that the evidence preponderates in favor of appellant's version of the contract. From the result, we...
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