Tomlinson v. Dille

• Decision Date: 16 January 1925
• Docket Number: 65.
• Citation: 127 A. 746,147 Md. 161
• Parties: TOMLINSON v. DILLE.
• Court: Maryland Court of Appeals

127 A. 746

147 Md. 161

TOMLINSON v. DILLE.

No. 65.

Court of Appeals of Maryland

January 16, 1925

Appeal from Circuit Court, Anne Arundel County.

"To be officially reported."

Action by John Tomlinson against Alonzo O. Dille. Judgment for defendant on his demurrer to the declaration, and plaintiff appeals. Reversed, and new trial awarded.

Argued before BOND, C.J., and URNER, ADKINS, OFFUTT, DIGGES, PARKE and WALSH, JJ.

J Wilson Ryan, of Upper Marlboro, and Eugene P. Childs, of Annapolis (Lansdale G. Sasscer, of Upper Marlboro, on the brief), for appellant.

William J. Neale, of Washington, D. C. (George B. Merrick, of Upper Marlboro, and A. Theodore Brady, of Annapolis, on the brief) for appellee.

URNER J.

The appeal in this case is from a judgment for the defendant on his demurrer to the declaration, which alleged his breach of a written agreement under seal purporting to be a "contract of renting," between the defendant and the plaintiff, and providing for the lease by the former to the latter of a farm in Prince George's county for the term of one year from January 1, 1919. It was stipulated in the agreement that the defendant should furnish the farm with the implements and live stock necessary for its proper use and cultivation, materials for the repair of the fences, and seed, lime and fertilizer in proper quantities; that the plaintiff should personally superintend the operation of the farm, and supply all labor required for that purpose; that all livestock, hay, straw, fodder, and grain in the cribs on the farm at the beginning of the term should be inventoried and valued at that time, and a similar inventory should be taken at the end of the year, and the plaintiff should be entitled to one-third of any increased value of such property shown by the second appraisement, as compared with the first and should make good one-third of any deficiency thus disclosed; that all crops, other than wheat, should be fed on the farm, and none of it, nor any live stock, should be sold except by mutual consent; that the plaintiff should harvest, thresh, and ship the wheat crop maturing in 1919, and receive one-third thereof as his compensation for that service, and should sow an equal area in wheat for the succeeding crop free of charge, and be paid a reasonable compensation for sowing in wheat any additional land which ought to be so used in the proper course of crop rotation; that the defendant should pay two-thirds and the plaintiff one-third of the blacksmith bill and certain other expenses incurred during the year; that the defendant might keep two horses on the farm and the plaintiff one, for their personal use, respectively, but the plaintiff's horse should be available for farm work if needed; that the plaintiff should have the right to obtain firewood for himself and his employees from the timber land on the farm, and they should have all vegetables raised by them in the gardens appurtenant to the houses which they occupied; that the plaintiff might keep not more than a specified number of chickens, but could not keep any turkeys, ducks, or geese; that the contract was renewable by consent of the parties, and that, at the end of the tenancy, the plaintiff should "return" the farm to the defendant "in as good condition as he got it, ordinary wear and tear and the action of the elements excepted"; that the proceeds of the sale of live stock or produce should be paid to the defendant, who would make reasonable advances to the plaintiff from time to time if requested so to do, and the plaintiff should "receive as his share of the said rent one-third of the total of the net profits of the farming operations for the year"; and that all differences between the parties, under the contract, should be settled by arbitration.

It is alleged in the declaration that the agreement was continued in effect by successive renewals until December 31, 1922, when the plaintiff, after having fully performed all of his contractual duties, surrendered the farm to the defendant, "together with all stock, grain, and crops undivided as to the excess," but the defendant has refused "to make an inventory and pay over to the plaintiff his interest," and "to make any settlement," as provided in the contract. For the alleged breach of the agreement the plaintiff claimed damages to the amount of $2,000.

The demurrer to the declaration stated the following objections: (1) That the contract sued on is one of partnership and is therefore unenforceable in a court of law. (2) That it contains a covenant for arbitration, and no averment is made in the declaration of an offer by the plaintiff to resort to that method of adjustment. (3) That the declaration does not specify the stock and crops left undivided on the farm, or allege that they were in excess of the property of that nature which the defendant was entitled to have remain on the farm at the expiration of the final term.

The argument was chiefly devoted to the first objection assigned by the demurrer. If a partnership was created by the agreement stated in the declaration, this...