Thayer-Moore Brokerage Company v. Campbell

• Decision Date: 29 April 1912
• Citation: 147 S.W. 545,164 Mo.App. 8
• Parties: THAYER-MOORE BROKERAGE COMPANY, Appellant, v. W. F. CAMPBELL et al., Defendants, R. A. CAMPBELL and R. S. CAMPBELL, Respondents
• Court: Kansas Court of Appeals

147 S.W. 545

164 Mo.App. 8

THAYER-MOORE BROKERAGE COMPANY, Appellant, v. W. F. CAMPBELL et al., Defendants, R. A. CAMPBELL and R. S. CAMPBELL, Respondents

Court of Appeals of Missouri, Kansas City

April 29, 1912

Appeal from Jackson Circuit Court.--Hon. James H. Slover, Judge.

AFFIRMED.

Judgment affirmed.

Scarritt Scarritt, Jones & Miller for appellant.

T. B Wallace for respondents.

OPINION

JOHNSON, J.

This is an action on two promissory notes of three hundred and fifty dollars each executed by defendants W. F. Campbell and C. S. Campbell as principals and R. A. Campbell and R. S. Campbell as sureties in payment to plaintiff of the rent for one year of a farm of 120 acres in Jackson county which plaintiff, the owner, leased to W. F. Campbell and C. S. Campbell who operated a dairy on the farm. Both notes were executed February 21, 1907. One by its terms matured August 1, 1907, the other on November 1st of that year. Payments amounting to $ 215.25 were made by defendants and credited on the note first due leaving a remainder on that note of $ 134.75 with interest at eight per cent per annum from August 1, 1907. No payments were made on the other note which bore interest at eight per cent from the date of its maturity. The credits on the first note consisted of $ 150, cash paid by defendants and three items of thirty-nine dollars and twenty-five cents, six dollars and twenty dollars respectively for services rendered by defendants to plaintiff. By the provisions of the lease the farm was let to defendants R. A. and R. S. Campbell for a period of one year from March 1, 1907. The farm is seven or eight miles south of the business center of Kansas City and at the time of the letting it was the purpose of plaintiff to sell the place either in gross or in subdivisions. To permit the carrying out of this purpose and to provide for the dispossession of defendants of any part of the farm sold during the term and for a proper allowance to defendants on account of such dispossession the lease contained the following provisions:

"Said second party (these lessees) agrees to farm said land in a first-class manner, and to keep all shrubbery and fruit trees around the house and in the garden and orchard, properly trimmed, and in good condition, and all the fences and gates in good condition, and to keep the weeds and underbrush cut out on the pasture land. This lease being made upon the special condition that the whole place is to be kept in good condition, it being the intent of said first party to sell said farm during the summer of 1907, and to aid in that purpose, said first party makes this lease conditioned upon the whole place being kept in an attractive manner.

This lease is made with the express understanding that said first party intends to sell said farm, and for that purpose, its representatives shall have free access to any part thereof at all proper times. To effect said sale, said first party may divide it up into small tracts and will have numerous customers looking over the place, and said second party agrees to assist in such sale by giving the prospective purchaser free access to such information as the prospective purchaser may desire of any part of said farm and buildings.

In case of the sale of any portion of said farm before the expiration of this lease and the purchaser shall want possession thereof, the said second party shall be allowed a rebate for the unexpired term of this lease, as the time and amount of land of which he is dispossessed shall bear to the whole, and if there are any growing crops upon such land, he shall be allowed a fair valuation of said crops at the time the land is taken. If the land of which he is dispossessed, should include the house and improvements surrounding it, he shall be allowed a drawback of dollars per month for the use of the house for the unexpired term of the lease and said second party agrees to give possession to any part of said land that may be sold, upon being given thirty (30) days' written notice from said first party. In the event that said first and second parties cannot agree as to what damages shall be allowed for growing crops, they shall each appoint one man as arbitrator and the two so chosen shall appoint a third man, and these three shall fix the damages and the amount agreed upon by these arbitrators shall be paid to said second party, but the vacation and surrender shall take place at once, or within thirty (30) days, upon the request of first party, irrespective of said time when the valuation aforesaid is determined."

Pursuant to this lease defendant lessees took possession of the farm and conducted a dairy thereon during the whole term. They kept from thirty-five to forty milch cows and sold all the milk to a dealer. They do not claim in their testimony that the acts of plaintiff on which they found their defense and counterclaim damaged the cows, decreased their output or prevented the sale of the product to the dealer with whom they had a contract. A part of the farm was under cultivation and a part was in meadow and pasture land. Defendants, whose possession was not disturbed during the first five months of their term, had growing and thriving crops of millet, cane and hay. Shortly after the beginning of the term plaintiff had the land surveyed and platted into an addition. The plat subdivided the land into blocks and lots and streets and alleys and plaintiff made a number of sales of lots during the season, but delivered the actual possession to the purchaser of only one tract so sold. That tract contained four lots or about half an acre and was situated in defendants' millet field. There is no dispute over the fact that defendants lost the crop on that tract and became entitled to reimbursement for that loss.

On August 23, 1907, plaintiff wrote defendants the following letter: "After considering the whole situation, we have concluded it would be best for all parties to cancel our arrangement and terminate the lease on the house and premises you now occupy, located in the southeast quarter (1/4) of the southwest quarter (1/4), section twenty (20), and the east one-half (1/2) of the northwest (1/4) quarter, section twenty-nine (29), township 48, range 33, Jackson county, Missouri, under the terms of the lease entered into between us on the 23d day of February, 1907.

"We would like for you to arrange to give us possession on the 30th day of September. We will adjust with you the amount of rent due up to that time, and we write you this now so that you will have time to look around and get another place without too much inconvenience to yourself. We are obliged to get the property in shape so that we can sell it, and this necessitates tearing down pretty much all of the fences and getting the whole premises in attractive shape, and we don't see that you could use it to advantage while we are working on it in this way. The note for rent the first of August is still unpaid and we would like to have the money for it."

Defendants being unable to rent another farm at that time in the year declined to accede to this request and remained on the place. Plaintiffs were anxious to make their addition more attractive to customers and to that end sought and obtained the consent of plaintiffs to the grading of some of the platted streets through the fields of millet, cane and hay. The agreement which was not reduced to writing thus is stated by one of the defendants:

"Q. Did you complete any agreement at that time about the streets? A. No, sir. Q. When did you? A. Mr. Thayer came out sometime the next week and said he wanted to put through a street or two, and wanted to know where it wouldn't damage me too much. He said they wanted to open the place--they didn't want it to look so much like the country--wanted to make it look like town. Q. Was there anything said about payment of damages? A. Yes, they said whatever the damages was, they would settle it. He said they wanted me to grade some streets--I could work out there--if I would let them put the streets through--that later on they would have to do some grading."

The agreement is stated differently by a witness introduced by plaintiff. We quote from his testimony:

"Q. Tell the jury what understanding was had at that time, what agreement was entered into with Mr. Campbell in reference to the opening of those streets? A. Well, it has been quite a long time ago, but as near as I can recollect the facts they are about as follows: We wanted to get Mr. Campbell to leave the place, and he wouldn't leave--he wouldn't give it up. We were willing for him to give it up and he wouldn't do so and we then arranged with him about marking out some streets there and to reimburse him for any standing crops he might have. Q. What crops were mentioned? A. The only crop I saw there was a little Kaffir corn and some millet--some cane and millet. Q. Was any other crop mentioned or figured on between you? A. No, sir. Q. What else, if anything, was to be allowed him--just tell the whole thing--what the agreement was? A. We were to allow him for any damage that he had to his crop and any damage that might result, that is, any ground we might take from him for streets, it is my understanding we would allow him money for that, if it disturbed anything. Q. Was that the whole of the agreement? A. That was my understanding of it, as far as I remember it, nothing more."

The evidence of defendants tends to show that pursuant to this agreement plaintiff had a number of streets graded and that damage thereby was wrought to the growing crops to the amount of about $ 300.

The fences on the place were destroyed at places required by the prosecution of the work. The damage to the crops was caused partly by the grading...