Stewart v. Droste

• Decision Date: 18 September 1956
• Docket Number: No. 29319,29319
• Citation: 294 S.W.2d 600
• Parties: John STEWART (Plaintiff), Appellant, v. L. DROSTE (Defendant), Respondent.
• Court: Missouri Court of Appeals

Page 600

294 S.W.2d 600

John STEWART (Plaintiff), Appellant, v. L. DROSTE (Defendant), Respondent.

No. 29319.

St. Louis Court of Appeals, Missouri.

Sept. 18, 1956.

A. J. Murphy, Jr., and William G. Goodin, Louisiana, for appellant.

Suelthaus & Krueger, St. Louis, and Warren H. May, Louisiana, for respondent.

MATTHES, Judge.

Action in quantum meruit. Plaintiff alleged that defendant owed him $350 for preparing land and sowing clover and lespedeza therein for 1948 and 1949, and a balance of $4,900 for feeding and caring for certain livestock in 1948, 1949, and 1950. Tried without a jury, the trial court found against plaintiff, and he has appealed.

Defendant and his wife owned a large tract of land in Pike County, Missouri. According to plaintiff's testimony he rented approximately 1,200 acres thereof by oral agreement in March, 1948. The substance of the agreement according to plaintiff's version thereof was: defendant was to furnish plaintiff 15 cows, 1 bull, 10 brood sows, and 1 boar. Plaintiff was permitted to take 5 of his cows on the property. Labor necessary to farm the land was to be furnished by plaintiff. All crops were to be fed to the livestock. The increase from the cows and hogs was to be sold in the names of both parties but through defendant, and the net proceeds divided equally between the parties. Crops not fed to livestock were to be sold and proceeds divided equally. The period of time that the agreement was to remain in effect was not fixed by plaintiff's testimony. Defendant's testimony established the existence of the foregoing terms, but he insisted the contract contained these additional provisions: The corn belonging to defendant that was stored in a crib on the property when plaintiff took possession was to be fed to the livestock on condition that plaintiff leave a like amount in the crib when he vacated the premises; material for repairing fences was to be furnished by defendant, and labor for making such repairs by plaintiff. If it became necessary to purchase feed or supplement, such purchases were to be charged to and paid by defendant who was to be reimbursed upon sale of livestock. Defendant was to designate the tillable land that could be used for raising crops as well as land to be used for pasturing livestock. The expense of combining or threshing small grain was to be borne equally between the parties. Defendant stated the arrangement was to continue for a period of one year.

Plaintiff took possession under the contract. Admittedly the livestock was placed in his possession by defendant. Plaintiff detailed the services rendered by him in preparing and seeding land, and in taking care of the livestock in 1948, 1949, and 1950. In his direct testimony plaintiff stated he was making claim for plowing, disking, and seeding land to clover in 1948 and 1949, and for feeding and general care of the livestock for 1949 and 1950. He fixed the value of all of such services at $5,700, and gave the defendant credit for $500 which he stated was paid thereon. Plaintiff conceded there was corn in one of the cribs when he took possession, which plaintiff fed to the livestock. He fixed the amount of the corn at 440 bushels, whereas disinterested witnesses placed it at approximately 1,000 bushels.

Plaintiff testified that in June or July, 1949, because he was 'having some trouble at home', he requested defendant to purchase his interest in the cattle and hogs. Defendant refused, and suggested that the plaintiff should feed out the livestock. Because the house in which plaintiff was living was destroyed by fire on November 11, 1949, he moved his family to the home of his mother-in-law. However, he took possession of the store building without defendant's knowledge, and retained possession until May, 1951, the date that plaintiff stated he finally and fully vacated the premises. Some time after the parties had the discussion wherein plaintiff requested defendant to purchase his interest in the livestock, defendant asked plaintiff how long it would take him to feed out the stock and vacate. Plaintiff advised 'he wasn't going'. Around the first of March, 1950, defendant undertook to remove the brood sows from plaintiff's possession. Because some of the sows were about to give birth to pigs, and others had pigs that were not old enough to be moved, he did not take them for about seven or eight weeks. The cows, however, were taken by defendant near the end of March, 1950, but plaintiff retained possession of feeder cattle until May, 1950. During that month plaintiff shipped them without defendant's knowledge. Defendant did not instruct or request plaintiff to do any farming in 1950, and testified that without his knowledge plaintiff plowed under a clover field which would have produced a good crop in 1950, and also plowed under twelve acres of lespedeza. It stands undisputed that the only corp raised on the premises by plaintiff in 1950 was corn. Plaintiff stated he retained three-fifths, and gave defendant two-fifths thereof. Defendant's share according to his testimony amounted to 79 bushels.

The facts bearing upon the vital issue of payment will be discussed and considered in the disposition of the points presented.

This being a nonjury case, we must review it upon the law and the evidence. By the clear terms of the statute we have no right to set aside the judgment unless it is clearly erroneous, and we are required to accord due regard to the opportunity of the trial court to judge as to the credibility of the witnesses. Section 510.310 RSMo 1949, V.A.M.S.; Scott v. Kempland, Mo.Sup., 264 S.W.2d 349; Atkinson v. Smothers, Mo.App., 291 S.W.2d 645.

With candor plaintiff delimits the issues to two questions, as demonstrated by these assignments appearing in his brief: 1. Is the appellant entitled to recover in this action for the reasonable value of the work done and expenses incurred by him? 2. Does the evidence support the judgment of the court?

Apparently fearful that an attack would be made upon plaintiff's right to recover in quantum meruit, the theory has been advanced by him that the contract, being oral, was within the statute of frauds, Section 432.010 RSMo 1949, V.A.M.S., and an action on the contract would not lie. Undoubtedly when a contract for rental of lands is voidable under the statute of frauds, the injured party cannot sue for breach of contract. State ex rel. Fletcher v. Blair, 352 Mo. 476, 178 S.W.2d 322, loc. cit. 325, and cases cited, conformed to 238 Mo.App. 813, 188 S.W.2d 959. And in the well reasoned opinion of Gipson v. Fisher Bros. Co., Mo.App., 204 S.W.2d 101, it was held that where the contract is unenforceable...