Smith v. Sickenger
| Decision Date | 01 April 1918 |
| Docket Number | No. 12838.,12838. |
| Parties | SMITH v. SICKENGER. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Cole County; Jack G. Slate, Judge.
"Not to be officially published."
Action by E. C. Smith against Joseph Sickenger. Judgment for defendant, and plaintiff appeals. Reversed and remanded.
Pope & Lohman and T. H. Antrobus, all of Jefferson City, for appellant. Irwin & Haley, of Jefferson City, for respondent.
Plaintiff is a farmer and a cattle feeder, and his action is on an account for rent of a tract of farm land. It was begun before a justice of the peace, and on appeal to the circuit court the judgment was for defendant.
Plaintiff's claim is that he rented the place to defendant for 50 barrels of corn absolute, just as if the promise had been for a certain sum of money. Defendant's claim is that he was to pay 50 barrels of corn out of corn grown on the premises. His further claim is that this first contract was superseded by a second one, whereby he was to replant the corn and plaintiff was to do what was "just and right" about the rent.
The evidence in plaintiff's behalf was that defendant was to pay him 50 barrels of corn for the rent. The evidence in defendant's behalf, expressed in his own language, was that:
He stated that he planted corn on the ground, but that shortly afterwards it was destroyed by flood, and that he went to plaintiff and told him about it, when plaintiff said to him, "You go back and put it out (replant) and I will do what is right about it." He then testified that after considerable effort he got it replanted, and that at gathering time he saw plaintiff and asked him, "What part of the crop are you going to want?" and that plaintiff replied that he had never seen it, and for defendant to call him when he was going to gather it and he (plaintiff) would go over; that although he called him plaintiff never came, and he gathered 22 loads and piled it on the ground; and that he afterwards took home for himself "8 pieces of loads" leaving 14 full loads for plaintiff.
The defendant asked, and the court gave, instructions for him based on the hypothesis of the second or new contract; and plaintiff's instructions were qualified, over his protest, with the same hypothesis.
We think the new contract testified to by defendant is without force or effect and should not have been submitted to the jury. Defendant testified that he was to pay for rent 50 barrels of corn to be raised on the premises. It was his duty under that contract of tenancy to perform good husbandry and make every reasonable effort to get a stand of corn and to cultivate it to...
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