Stevens v. Myers, 17993.

• Decision Date: 11 June 1934
• Docket Number: No. 17993.,17993.
• Citation: 73 S.W.2d 334
• Parties: STEVENS v. MYERS.
• Court: Missouri Court of Appeals

73 S.W.2d 334

STEVENS v. MYERS.

No. 17993.

Kansas City Court of Appeals. Missouri.

June 11, 1934.

Rehearing Denied July 2, 1934.

Appeal from Circuit Court, Jackson County; Brown Harris, Judge.

"Not to be published in State Reports."

Suit by W. P. M. Stevens against Claude J. Myers in which a temporary injunction was granted. From a judgment dissolving the temporary injunction, denying the application for a mandatory injunction and dismissing the petition, plaintiff appeals.

Affirmed.

Hudson & Payne and C. H. Kohler, all of Kansas City, for appellant.

L. T. Dryden and W. J. Dryden, both of Independence, for respondent.

REYNOLDS, Commissioner.

This cause arose in the circuit court of Jackson county. It is a suit in which appellant, the plaintiff, seeks ultimately a mandatory injunction requiring respondent, the defendant, to quit the possession of certain lands described in the petition and deliver the same up to him and incidentally a temporary injunction restraining respondent from committing acts of alleged waste and trespass upon said lands until a hearing be had upon the merits for such mandatory injunction, and in which he also seeks judgment against respondent for rents in the sum of $110 with interest and for damages for waste. The petition was filed March 20, 1933.

It appears that appellant is the owner of said lands and that, about February 23, 1932, he leased said lands, with the exception of a dwelling house thereon and certain small garden and orchard tracts surrounding said dwelling house, by written contract, to the respondent for a term expiring February 28, 1933, for an expressed consideration of $260 in cash and certain parts of the corn and hay crops grown thereon, and placed him in possession thereof.

The amended petition, filed March 22, 1933, alleged such ownership and rental and the failure of respondent to pay certain rentals due, after demand for payment of same by appellant. It further alleged that, upon such failure, appellant made demand for possession of said farm on account thereof and thereupon became entitled to such possession; that such demand for possession had been made by appellant and refused by respondent; that respondent had refused to allow appellant's servants to enter upon or cultivate said lands or use the buildings thereon but remained in possession thereof; that respondent has also taken possession of certain portions of said farm reserved to appellant's use by the terms of the original contract; that respondent allows stock to run in the yards about the dwelling reserved and in the fields while thawing and in the small orchards on the farm to appellant's irreparable damage and loss; that he is plowing certain fields and threatens so to continue; that he is committing waste by cutting certain standing timber which cannot be replaced; that said premises are of the reasonable value of $25,000 to appellant and that the same are being greatly depreciated to appellant's injury; that respondent is wholly insolvent; and that appellant has no adequate remedy at law.

The answer to the amended petition challenged the same as failing to state facts sufficient to constitute a cause of action for injunctive relief against respondent, and denied that any rents remained due and unpaid appellant, and averred that appellant had a full, complete, and adequate remedy at law.

It admitted the execution of a written lease, under which respondent entered possession of the land involved in the suit, but alleged that the execution of said contract was procured through fraudulent statements of appellant, inducing the execution thereof by respondent, with respect to the determination of the cash rental agreed to be paid; that respondent never, at any time, agreed to pay the sum of $260 in cash as part rental for said premises, but only agreed to pay a cash rental based upon the number of acres of pasture land upon such premises at $5 per acre, such number of acres to be determined by actual measurement; and that he was induced to execute the written contract, as presented by appellant, upon the promise of appellant that the number of acres of said pasture land should be determined by measurement and respondent should be required to pay, in cash rental therefor, only the sum of $5 per acre. The answer further alleged that appellant had never caused said pasture lands to be measured and that, in fact, the number of acres thereof does not exceed 28, and that he never became indebted to appellant for cash rent in excess of the sum of $140; that the matter of the adjustment of the amount of cash rental due came up between appellant and respondent and it was agreed that said rental had been satisfied by the payment of $150 theretofore made by respondent to appellant and that nothing remained due thereon but the same had been fully satisfied.

Respondent admitted that he had refused to vacate the premises and alleged that he had entered into a new, oral lease with the appellant for the same and had, with appellant's full knowledge, done much plowing and other work preparatory to the use of said premises under the new lease.

The answer joined issue by specific denial with all the allegations of the petition relating to acts of trespass or waste by respondent upon the premises or to any threat or intention to commit any trespass or waste thereon. It denied the wrongful occupancy of any part thereof by respondent or the exclusion of appellant and his servants from entering upon the parts thereof reserved by the contract to appellant's use. From the view we have of the case, it is unnecessary to set out the answer more fully.

Appellant, in his reply, admitted the execution of the written lease of date March 1, 1932. He denied the existence of any new, oral contract between appellant and respondent for the rental by respondent of the premises for another year, and denied that there had been any settlement of...