Roberts v. Lehl

• Decision Date: 14 June 1915
• Docket Number: 4039
• Citation: 27 Colo.App. 351,149 P. 851
• Court: Colorado Court of Appeals
• Parties: ROBERTS v. LEHL.

149 P. 851

27 Colo.App. 351

ROBERTS v. LEHL.

No. 4039

Court of Appeals of Colorado

June 14, 1915

Error to District Court, Adams County; Charles McCall, Judge.

Action by Lawrence Lehl against William Roberts. There was a judgment for plaintiff, and defendant brings error. Reversed and remanded.

T. Webster Hoyt, of Denver, for plaintiff in error.

MORGAN J.

Plaintiff was the lessee of a farm, and sued the lessor for $2,056.65 damages to growing crops, alleged to have been caused by the lessor's failure to pay for the water for irrigation thereof as provided in a written lease. Plaintiff obtained a verdict and judgment for $318.15, and defendant assigns error on the following grounds:

First. It is contended that the action was not in the name of the real party in interest, because it appeared on the back of the lease, when it was set forth in an amendment to the complaint, and when it was introduced in evidence, that it had been assigned. Such assignment was made, however, after the injury sued for occurred, and there was no evidence of an assignment of the claim for damages. The mere assignment of the lease, at such time, would not carry with it the claim herein, in the absence of any other evidence on the matter.

It is stated in Jones on Landlord and Tenant, § 436:

"The word 'lease,' when used in a contract of assignment to designate the interest transferred, has a definite legal signification--it means the estate in the land."

The defendant did not plead or offer to prove that the claim for damages herein had been assigned. And the suit was brought almost immediately after the assignment, and no evidence was introduced as to damages accruing after the date of the assignment. Mr. Jones says, also, at section 448 at page 513:

"Though it appears that the lessee has assigned his lease for the remainder of the term to another party, yet it is competent for him to institute an action for any damages accruing to him by reason of the breach of the covenants of the lease by the lessor, while he held the lease, and, to recover such damages, it is proper that the lease be exhibited in evidence."

In the case of C., C., C. & St. L. Ry. Co. v. Wood, 189 Ill. 352, 355, 59 N.E. 619, 620, it was contended that it appeared from the evidence--

"that this lease, and all rights under it, have been transferred from the plaintiff *** since which time he has had no interest in the lease or any connection with the contract, and therefore cannot maintain an action upon it."

And the court said:

"Though it appeared the appellee had assigned the lease for the remainder of the term to another party, yet it was competent for him to institute an action for any damages accruing to him by reason of a breach of the covenants of the lease on the part of the appellant company while he held the lease, and to recover such damages it was proper the lease should be exhibited in evidence."

Second. It is next contended that it was error to overrule the demurrer to the complaint. The complaint demanded a greater amount of damages than any true measure thereof would warrant from the facts alleged, but this did not prevent it from stating a cause of action for a less amount upon a true measure.

Third. It is then contended that erroneous instructions were given concerning the measure of damages, and it is concluded that for such error the judgment must be reversed; and, in view of the possibility of another trial, the reversible error will be pointed out, although the case of the Colo. Con. L. & W. Co. v. Hartman, 5 Colo.App. 150, 38 P. 62, ought to have been, and should be, a sufficient guide.

There are instances where such erroneous instructions would not constitute reversible error, as in Denver P.W. Co. v. Munger, 20 Colo.App. 56, 77 P. 5, and in Seyfried v. Knoblauch, 44 Colo. 86, 96 P. 993, wherein the damages proved were at least equal to or greater than the verdict; but in the present case the facts proved were not sufficient upon which to base any true rule for the measure of damages, or upon which any damages could be rightfully based, when measured by any true rule. And, if error had been assigned upon the refusal of the court to give defendant's proffered instruction for a directed verdict, the judgment would have been reversed for that reason alone. It is concluded, however, that the assignment as to the erroneous instructions given accomplishes the same result.

One measure of damages submitted by the lower court and appled to the crops totally destroyed, as well as to those only injured, was "the cost of preparing the ground, seeding, planting, cultivating and caring for the crops, up to the time of the injury," plus "reasonable profits"; another measure submitted was "the cost of preparing the ground, sowing, cultivating, and caring for the same, the cost of harvesting, marketing, and the value of the crop at its maturity," followed by an instruction to allow "reasonable profits," "in addition to the actual damage." These instructions, more or less, fit the evidence, but, as both the evidence and the instructions were based upon a misconception of the measure of damages, the jury were misled and, by reason of such error of the court, found the verdict. If a true measure of damages had been submitted, the jury would have found themselves without sufficient evidence to find any damages, for the reason that there was no evidence, except to prove the cost of preparing the ground, seeding, sowing, planting, cultivating, and caring for the crop up to the time of the injury, especially as to the crops only injured or partially destroyed. As to those totally destroyed, no recovery should have been permitted at all, under the evidence, for reasons hereinafter given.

The true measure of damages, as to growing crops, totally or partially destroyed, is not what it cost to raise them up to the time of the loss, nor what it would have cost to raise them up to maturity; and, if "reasonable profits" be added to such cost, it would be exceedingly fortunate to lose them. As stated in the Hartman Case, the proper rule as to the measure of damages as to the total destruction of annual crops (as distinguished from perennial) is the value thereof at the time and place of the loss; that is immediately before the loss, considering their condition at that time. And the method or data that is submitted to assist the jury in arriving at such value should be as carefully stated as the rule itself. One...