Throm v. Koepke Sand & Gravel Co.

• Decision Date: 08 January 1952
• Citation: 260 Wis. 479,51 N.W.2d 49
• Parties: THROM, v. KOEPKE SAND & GRAVEL CO.
• Court: Wisconsin Supreme Court

Page 49

51 N.W.2d 49

260 Wis. 479

THROM, v. KOEPKE SAND & GRAVEL CO.

Supreme Court of Wisconsin.

Jan. 8, 1952.

Rehearing Denied March 4, 1952.

On May 11, 1949 plaintiff, Herman Throm and defendant, Koepke Sand & Gravel Co., entered into a written contract by the terms of which plaintiff leased to defendant for the term of six months a parcel of farm land consisting of about three acres for the operation thereon by defendant of a rock or gravel crushing plant. Defendant agreed to pay therefor and did pay the sum of $200 and at the end of the operation to 'clean up and restore to farming condition' the land so to be used. The operation was completed and defendant's equipment removed on about September 1, 1949.

This action was brought on December 20, 1949 to recover damages for defendant's alleged failure to restore the land to farming condition. The case was tried to the court and jury. A general verdict was returned, 'for the defendant and against the plaintiff, no cause of action.' Judgment was entered on January 29, 1951. Plaintiff appeals.

Arthur DeBardeleben, Park Falls, DeBardeleben & Mahoney, Park Falls, of counsel, for appellant.

John M. Whitmer, Park Falls, Benton, Bosser, Becker, Parnell & Fulton, Appleton, of counsel, for respondent.

GEHL, Justice.

Plaintiff contends that the testimony offered by him that his land was not cleaned up and restored to farming condition, being uncontradicted and undisputed, could not be disregarded by the jury, and that therefore there was no evidence to support the finding. He offered proof that the land had been under cultivation for the production of alfalfa hay prior to defendant's operation; that it was left covered in part with rock and gravel; that considerable of the top soil had been removed leaving rocks sticking out of the ground; that a pile of rock of considerable size which covered some of his timber had been left at one end of the field, and that to recover the land with top soil would cost $3,000 or more.

The testimony of the plaintiff is met by the testimony of one Beil who is a farmer and for nineteen years had been town assessor. He testified that most of the land in the area of plaintiff's land, including that of the plaintiff is rocky and had been assessed at a value of from $20 to $25 per acre; that he had seen the farm two or three times in each year, and that during the year 1950 prior to the trial he had seen it twice. With respect to the precise question with which we have to deal he stated:

'* * * This year I went back there twice because the first time I looked at it it did not look right to me, I went back a second time and I figured if a man had harrowed it up and seeded it down he would have got a fair crop of hay off it * * * I figured if it was harrowed up it could be used for farm land * * * if it was mine I would have had it harrowed, had it worked over this spring and tried to raise a crop on it.'

We are not to consider the quantum of defendant's evidence; our function it only to determine whether there is any credible evidence to support the verdict. This familiar rule requires no citation of authorities. We conclude that the testimony of the witness, Beil, suffices. He did not, it is true, testify that in its present state the land had been restored to good farming condition. But that was not defendant's obligation; the contract required it to restore it to 'farming condition'. It is also true that he testified, in answer to the question whether he considered that it was in farming condition, that to make it useful it would have to be harrowed and seeded. That was not defendant's obligation. We may take judicial notice of the fact that even upon the best of farm land the soil must be harrowed or plowed and seeded down to produce a crop, and that those operations are required periodically. The testimony of the witness Beil supports the verdict.

Against objection, defendant's witness, the town assessor, was permitted to testify that the land had been assessed at from $20 to $25 per acre and a real estate dealer was permitted to testify that the land when cultivated would be worth about $30 per acre. Plaintiff contends that since the proper measure of damages is determined by the terms of the contract, the cost of restoring the land, this was error. If it was error it was not prejudicial. Upon the jury's finding that plaintiff had no cause of action, plaintiff was not entitled to any damages, and he had not have been prejudiced because of an error which might have tended to reduce the amount of his recovery had the jury found in his favor. Toepfer v. Sterr, 156 Wis. 226, 145 N.W. 970.

The court instructed the jury that the term, '* * * 'Farming condition' has no technical definite meaning in the law or elsewhere as far as I know, and you must use your best judgment as to what that means, that is, whether or not the Company restored the place to 'farming condition'. That does not mean that it must be restored to exactly what the land was before, but whether it was restored sufficiently so as to make it proper for farming. That question must be determined by you from the evidence. * * *'

No judicial definition of the term 'farming condition' has been called to our attention, nor have we been able to find one. It is an ordinary term used in a conventional sense by people residing in a farming area and familiar with the character and quality of farm land. It is doubtful that a definition of the term which might make its meaning more clear to the jury could be...