Smart v. Burquoin

• Decision Date: 26 December 1908
• Citation: 51 Wash. 274,98 P. 666
• Parties: SMART et al. v. BURQUOIN.
• Court: Washington Supreme Court

98 P. 666

51 Wash. 274

SMART et al. v. BURQUOIN.

Supreme Court of Washington

December 26, 1908

Appeal from Superior Court, Spokane County; Henry L. Kennan, Judge.

Action by G. C. Smart and another against A. Burquoin. From a judgment dismissing the action, plaintiffs appeal. Affirmed.

Lovell & Hamilton, E. A. Davis, and John Truax, for appellants.

Roche &amp Onstine, for respondent.

CHADWICK J.

This was an action brought by plaintiffs, G. C. Smart et al., to recover the reasonable value of work and labor performed by them at the special instance and request of defendant, A Burquoin, in plowing certain lands owned by defendant in Adams county, Wash. Defendant asked for a bill of particulars in respect to the contract, whether oral or written, to which the plaintiffs responded, saying 'that the agreement, if any, made by and between the parties herein, was oral, and not in writing.' Thereupon defendant answered, denying the material allegations of plaintiffs' complaint, and further alleging that plaintiffs had entered into possession of defendant's lands under an express contract of lease, made in the presence of witnesses, dictated by an attorney to a stenographer, but for reasons not now material not extended and signed by the parties at the time. The alleged lease is set out in haec verba in the answer. It is further alleged that in virtue of the contract of lease plaintiffs did partially cultivate and summer fallow the lands of defendant that plaintiffs violated the terms of the lease in certain specified particulars, and had wholly abandoned the land. To defendant's answer plaintiffs replied, admitting that the parties had entered into an oral contract, by the terms of which defendant agreed to lease, and plaintiffs agreed to rent for a certain term, the lands described in defendant's answer, the rental therefor to be one-third of the crops raised thereon; that they went into possession under the terms of the oral agreement; and that they remained in possession until served with a notice to quit. They deny further that they have in any way broken or violated the terms of the lease, but allege that, on the contrary, defendant has violated the terms of the contract by entering upon and taking possession of the lands during the life of the lease. The parties disagree upon the terms of the contract with reference to certain covenants going to the seeding and cultivation of the land, but, as will be seen, this element of the case presented needs no discussion. It is admitted that the contract, whether as alleged by plaintiffs or as alleged by defendant, was made on or about the 1st day of March, 1906, and that plaintiffs entered and continued in possession until on or about January 7, 1907, which was the date service of notice to quit was made upon them. The work done by plaintiffs was performed between those dates, and consisted in summer fallowing a part of the land. When the case was called for trial, defendant objected to the introduction of any evidence, and moved the court that the jury be discharged and that judgment be entered for the defendant for the reason 'that there was a departure in the...