Wilson v. Schoonover, 2140

• Decision Date: 03 May 1940
• Docket Number: 2140
• Citation: 55 Wyo. 519,101 P.2d 866
• Parties: WILSON v. SCHOONOVER
• Court: Wyoming Supreme Court

101 P.2d 866

55 Wyo. 519

WILSON v. SCHOONOVER

No. 2140

Supreme Court of Wyoming

May 3, 1940

APPEAL from the District Court, Johnson County; JAMES H. BURGESS Judge.

Suit by Raymond T. Wilson against Jesse W. Schoonover for rentals claimed to be due under lease of certain land, wherein the defendant filed a counterclaim. From a judgment for plaintiff, the defendant appeals.

Affirmed.

For the appellant, there was a brief and oral argument by Burt Griggs of Buffalo.

The controversy involves a question as to whether the terms of the original lease were modified by an agreed reduction of the rental rate. There never was a written lease, but for a number of years appellant paid respondent $ 75.00 per annum. Respondent afterwards raised the price to $ 150.00 per annum which was paid by appellant until 1935, when it was again reduced to $ 75.00. There were three essential elements of the lease contract alleged by respondent: (1) There was a verbal lease from year to year; (2) Appellant agreed to pay $ 150.00 per annum as rental; and (3) That the lease was from February 1 to February 1 of each year. Unless there was a meeting of minds of the parties upon said three propositions there was no contract, and respondent cannot lawfully recover under our Statute of Frauds. A lease for more than one year must be in writing, and under Section 97-207-8, R. S. 1931, there is no implied renewal of a lease after its expiration. There must have been two leases, one, an oral lease, the other by sufferance on the expiration of the first. The first was for $ 75.00 per annum. Thereafter, the rental was increased to $ 150.00 per annum for two years and thereafter respondent accepted $ 75.00 per annum as rental. If the court based its judgment upon a theory of reasonable value of the use of the land for the periods in question, the statutes and decisions of Wyoming were overlooked. Sec. 97-207-208, R. S. 1931; McNamara v. O'Brien, 2 Wyo. 447, 450. The present case is on all fours with the McNamara case. Lawer v. Mitts, 33 Wyo. 249. The written lease having expired, appellant held a tenancy by sufferance. Hiteshew v. Rosson, 41 Wyo. 509. Respondent failed to prove any contract of lease for the years 1936 or 1937, or that appellant is indebted to him under his theory or as a tenant by sufferance.

For the respondent, there was a brief by John F. Raper of Sheridan.

Appellant reversed the title of the cause on his appeal. Respondent was entitled to recover rental at $ 150.00 per annum from February 1, 1937 to February 1, 1938, and the judgment rendered for respondent should be affirmed by this court. The rental rate was agreed upon by the parties and the trial court so found. Respondent has filed a motion to dismiss this appeal, on the grounds that no specifications of error have been filed as required by Chapter 89, Section 4908, R. S. 1931, in that said specifications of error are too general and insufficient to present any question for review. Bowman v. Bowman, 82 P.2d 357. A reasonable attorney's fee should be taxed as costs against appellant, said appeal being frivolous and without merit. Sec. 89-4804, R. S. 1931.

RINER, Chief Justice. KIMBALL and BLUME, JJ., concur.

OPINION

RINER, Chief Justice.

This is a direct appeal from a judgment of the district court of Johnson County. The question presented is whether the defendant, Schoonover, as lessee, is liable for the yearly rental as claimed by the plaintiff, Wilson, as lessor, of certain lands owned and leased by him to the defendant during the years 1936-1937 and 1937-1938, said lands being located in Campbell County, Wyoming.

The plaintiff brought suit in the district court aforesaid for the rentals claimed to be due him for these two years, in the sum of $ 300.00, the yearly rental being averred to be $ 150.00 less a payment on account thereof of $ 100.00, plus accruing interest; in other words for a total sum of $ 200.00 and interest. The defense pleaded was a modification of the agreed rental rate payment and counterclaim for $ 25.00 due to the alleged fact that plaintiff sold the leased property in question to a third party in the summer of 1937 and the defendant was thereby deprived of the use of the demised premises immediately after the sale to his damage in the amount stated. Plaintiff's answer to this pleading was a denial of the claimed rental rate change; as to the counterclaim it was that the defendant voluntarily agreed with the purchaser of the leased premises to accept, and that defendant did accept, the use of other lands owned and controlled by said purchaser in lieu of the leased land, which he did not use. This exchange of lands was denied by the defendant.

The case was tried to the court without a jury and judgment was rendered for the full amount claimed by him upon a general finding in favor of the plaintiff and that the yearly rental value of the lands was $ 150.00.

The controlling facts--some of which we must take as established because of the general finding of the trial court upon conflicting evidence--appear to be these: Both the plaintiff and the defendant agreed both in their pleadings and their testimony, that, as stated by the defendant Schoonover, as a witness in his own behalf, he used the lands in question "for several years at a rental of $ 75.00 a year, and Mr. Wilson, after a series of years, wasn't satisfied with $ 75.00 a year and the sheep business was pretty good at that time, so I agreed to pay him $ 150.00 a year. This went on until 1935." For the year 1935 Schoonover sent Wilson a check for $ 75.00 for the yearly rental, with, as Wilson testified, "a hard luck story" and a statement that there was no feed on the land in question that year. Wilson accepted the check, and, as he states in his testimony, he "let it go at that," but not with any thought of reducing the rent to that sum for the future because he had been offered $ 200.00 per year for the lease of these lands.

On August 13, 1936, defendant wrote plaintiff, concluding his letter thus:

"Ray, how does our lease stand? I think I am behind on payments, but if things ever get better while I have sheep, I would like to keep the lease. Please write me about the lease."

To that letter Wilson responded, as he testifies, that "he (Schoonover) owed me the lease money for 1936, and I wrote and told him I would like to have the lease money and if he couldn't send it all to send part of it and send the other part later on, that my insurance was due the latter part of October and I needed the money. I never got a letter from him or a check until May 1937, and he sent me a hundred dollars. He was supposed to send me $ 150.00."

Schoonover's letter of May 12, 1937, in so far as it dealt with rent payments read thus:

"I enclose check for $ 100.00, payment on my lease. I appreciate your waiting this long time. I still want to hold the land."

Nothing was apparently then said in that letter or otherwise about a rental of $ 75.00 yearly for 1936 or for the future term of 1937-1938. Yet Schoonover testified:

"During '36 I didn't send him any money, but early in '37, in May, I think it was, I sent him a check for a hundred dollars to cover the '36 lease and apply $ 25.00 on the '37 lease, and Mr. Wilson cashed this check."

So far as the counterclaim of the defendant is concerned, the testimony in the record is sharply in conflict, the purchaser of the lands involved, one Morgan, who bought them July 24, 1937, testifying that he and Schoonover agreed on an exchange and use of lands, as plaintiff's answer to defendant's counterclaim alleged. Schoonover, however, denied that any exchange was made or that he used the lands of the purchaser.

The...