Winter v. Haan

• Decision Date: 10 May 1948
• Docket Number: 20994
• Citation: 211 S.W.2d 544
• Parties: WINTER v. HAAN et al
• Court: Kansas Court of Appeals

211 S.W.2d 544

WINTER v. HAAN et al

No. 20994

Court of Appeals of Missouri, Kansas City

May 10, 1948

'Not to be published in State Reports.'

Maurice Pope, of St. Joseph, for appellant.

John J Robinson and Harold L. Miller, both of Maysville, for respondent.

OPINION

CAVE

Plaintiff (respondent) sued in the alternative defendants, Owen and Haan, seeking damages arising out of plaintiff's eviction from farm property owned by Haan, and upon which plaintiff alleged he had a valid lease for one year executed by defendant, Owen, as agent for Haan. The case was tried to a jury, resulting in a verdict and judgment for defendant, Owen, from which there was no appeal; and a verdict and judgment against defendant, Haan, for $ 800. A motion for new trial was filed and, after a hearing thereon the court ordered a remittitur of $ 300, which was made, and a judgment entered for plaintiff and against defendant, Haan, for $ 500, from which he perfected his appeal.

Defendant, Haan, owned a farm of 186 acres adjoining Maysville, DeKalb County, Missouri. It was divided by a railroad right of way. There were about 120 acres south of the railroad and about 69 acres north thereof. The 69-acre tract is the land involved in this litigation. There were certain improvements on this land consisting of a dwelling house, wood shed, barn, silo and other outbuildings. On the 8th day of April, 1946, plaintiff signed a written lease for this tract for a period to expire March 1, 1947, and agreed to pay $ 400 cash rent. Defendant, Owen, signed Haan's name to the lease as agent. There is considerable evidence touching the question whether Owen had authority to make the lease as agent of Haan. We shall discuss that question later.

Plaintiff did not move into the house on the farm, but did move certain horses, cows and hogs onto the place, and sublet to another party 27 acres of the land for a corn crop, and hired a man to prepare and plant about 3 acres of corn near the barn. Defendant, Haan, was an Army officer and had been away from DeKalb County about 4 years in military service. He returned about the 8th of May, 1946, and at that time notified plaintiff to take his livestock off the place and surrender possession because he had no authority to be there, and stated that he had to proceed to Colorado and wanted the plaintiff off by the time he returned. When he returned in June he found plaintiff still in possession of the farm, with the corn crop planted, and his livestock in the pasture. At that time he told the plaintiff, in no uncertain terms, to get off of the farm, to stay off, and never come back. He took possession and proceeded to remove some fences, gates, barn doors, and do other work which resulted in plaintiff's livestock being turned out, or permitted to escape, onto the highway. All the evidence is to the effect that Haan forcibly evicted the plaintiff.

At the time the written lease was signed plaintiff delivered his check to defendant, Owen, for $ 400 for the year's rent. This check was not cashed but was returned to plaintiff about the time he was evicted.

Defendant, Haan (appellant), preserves and presents two assignments of error. The first assails plaintiff's instruction No. 2 on the measure of damages. This instruction reads:

'The court instructs the jury that if you find for the plaintiff on his petition and against either of the defendants, then you will award to the plaintiff such damages, if any, as will compensate the plaintiff for any pecuniary loss, if any, by reason of being evicted from the premises mentioned and described in evidence, and compensate him for any loss in profits in the operation of said farm, if any, which was lost by plaintiff by reason of such eviction, if any; compensation for loss of profits however, can only be awarded for such profits as is shown by the evidence to have been reasonable and certain to inure to plaintiff if he had not been so evicted, if you so find.' (Italics ours.)

Defendant first contends that the instruction is erroneous because it directs the jury to consider loss of profits as an element of damages, when, as he urges, the true rule is, the difference between the actual rental value and the rent reserved. He cites Jenkins v. Womach, 143 Mo.App. 410, 128 S.W. 530. On first reading that opinion does lend support to defendant's contention. But the distinction in the principles of law involved is pointed out in Shoemaker v. Crawford, 82 Mo.App. 487, 490, where it is said: 'It is the well-settled rule of law in this state that where a lessor fails to give possession of the leased premises, the measure of damages is the difference between the actual rental value and the rent reserved. Hughes v. Hood, 50 Mo. 350; Huiest v. Marx, 67 Mo.App. 418.' (Italics ours.) In the instant case the tenant was in possession of the farm and had begun operations, in that crops had been planted and many other things done preparatory for operation under the lease. In other words, he was in business. The same distinction is again pointed out by Bland, J., in the later case of Gray et al. v. Wabash Rwy. Co., 220 Mo.App. 773 at page 778, 277 S.W. 64 at page 66, where it is said: 'Formerly loss of profits as an element of damages was seldom allowed. Now, however, profits are allowed unless they are speculative, contingent, or uncertain. 17 C.J. 910 [25 C.J.S., Damages, § 90]. Although some courts hold to the contrary, it is now established in this state that loss of future profits caused by interruptions or the breaking up of an established business, is not too speculative, remote, or uncertain to be allowed. McGinnis v. Hardgrove, 163 Mo.App. 20, 145 S.W. 512. * * * It is held that profits of a new business, not yet opened up, are too remote and speculative to be recovered. Marvell Light & Ice Co. v. Gen. Elec. Co., 162 Ark. 467, 259 S.W. 741; 8 R.C.L., p. 511.'

In Gildersleeve v. Overstolz, 90 Mo.App. 518, the court, in discussing this question, said, 90 Mo.App....