Stobie v. Earp

• Decision Date: 19 December 1904
• Citation: 83 S.W. 1097,110 Mo.App. 73
• Parties: JOHN A. STOBIE, Respondent, v. JOHN EARP, Appellant
• Court: Kansas Court of Appeals

83 S.W. 1097

110 Mo.App. 73

JOHN A. STOBIE, Respondent, v. JOHN EARP, Appellant

Court of Appeals of Missouri, Kansas City

December 19, 1904

Appeal from Saline Circuit Court.--Hon. Samuel Davis, Judge.

AFFIRMED.

Judgment affirmed.

R. B Ruff and Alf. F. Rector for appellants.

(1) The demurrer to the evidence offered by the defendant at the close of the case should have been given. (2) Instruction number one given for the respondent should not have been given. There was no evidence to base it upon. (3) The court erred in refusing to give instruction number three, asked by the appellant. Devitt v. Railroad, 50 Mo. 302. (4) Instruction number four, asked by defendant and refused by the court should have been given. State v. Gates, 20 Mo. 400.

T. H Harvey for respondent.

(1) The court properly overruled defendant's instruction in the nature of a demurrer to the evidence. (2) Instruction number one on behalf of plaintiff was the law of the case and properly given. (3) The court committed no error in refusing to give instruction number three, asked by defendant. Perrette v. Kansas City, 162 Mo. 238. (4) Instruction number four was properly refused by the court.

OPINION

ELLISON, J.

Plaintiff brought his action against defendant with attachment in and for seven hundred dollars. The attachment was dismissed and plaintiff had judgment on the merits, whereupon defendant appealed.

It appears that plaintiff leased his farm for one year to defendant for money rent. Afterwards, plaintiff purchased defendant's growing crop and his interest in the lease (save his right to continue in the house) for seven hundred dollars which plaintiff paid him. Afterwards, for satisfactory reasons (the crop not being yet matured) the parties agreed that defendant should again become the tenant of plaintiff and should render to plaintiff a share of the crop as rent. Afterwards the wheat was harvested. It was then sold by plaintiff, he paying over to defendant the latter's portion of the sale money.

Plaintiff claims that when defendant became his tenant for a share of the crop it was understood and agreed between them that defendant was to return to plaintiff the seven hundred dollars paid him for the crop. Defendant denies that he so agreed, and contends that no matter what plaintiff may have understood, that he did not contract to return or pay back the seven hundred dollars. On that issue the jury returned a verdict for plaintiff for seven hundred dollars and interest.

We think there is substantial evidence (the circumstances and reasonable inferences considered) to sustain the verdict. Plaintiff...