Sidebilder
PDF
ePub

2. CROPS - CROPPER'S CONTRACT - RELATION CREATED.

A cropper's contract, whereby one agrees to cultivate the land of another and is to receive as compensation therefor a share of the crops grown, does not create the relation of landlord and tenant. Except where it is otherwise provided therein, such a contract grants possession of the land only as an incident to the work that is to be performed, and confers no general right of occupancy of and control over the land cultivated.

[Ed. Note. For cases in point, see Cent. Dig. vol. 15, Crops, §§ 6, 7.]

3. APPEAL-REVIEW-HARMLESS ERROR.

Error committed by a trial court in excluding a written instrument from evidence will not justify a reversal of the judgment, when secondary evidence is received in lieu thereof. and it is apparent that the party offering such instrument was not prejudiced by its exclusion: the facts sought to be established thereby and proven by parol evidence not being disputed.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 3, Appeal and Error, § 4161.]

(Syllabus by the Court.)

Error from District Court, Kiowa County; before Justice Frank E. Gillette.

Action by George W. Linn and W. J. Spice against C. E. Moore and A. H. Prough. Judgment for plaintiffs, and defendants bring error. Reversed.

Keys, Rummons & Cline, for plaintiffs in error. J. R. Hunter, for defendants in er

ror.

BURWELL, J. One John T. Shaw, while in possession of a tract of land on which he had filed a homestead entry, which was still in force, entered into a contract with the plaintiffs below, George W. Linn and W. J. Spice, wherein they agreed to sow 36 acres of this land to wheat and to harvest the same; they to receive two-thirds of the wheat and Shaw was to receive one-third. The contract was in writing, but not filed or recorded in the office of the register of deeds. It is as follows: "Territory of Oklahoma, Kiowa County-ss.: This agreement, made and entered into this fifteenth day of October, 1902, by John T. Shaw, party of the first part, and W. J. Spice and G. W. Linn, parties of the second part, witnesseth: That parties of the second part are to prepare and sow into wheat all the plowed ground, located in a body on southeast quarter of southeast quarter of Sec. 34, Twp. 6 north, range 17 west I. M., making approximately 36 acres, inore or less. That said second parties are to furnish the seed, cut the same when ready, and put into shock, or, if headed, to put into stack, all free of expense to first party. That second parties are to have (two-thirds) and first party % (one-third), said wheat to be divided either in shock, stack, or when threshed, to be agreed upon by all parties hereafter; but it is especially understood and agreed by all parties hereto that said party of first part will bear his part of expense in threshing (which is onethird), and that when second parties are

ready to thresh said grain that the first party or his authorized agent will be on hand to care for his said share of grain. Dated at John Blackwell, O. T., October 15, 1902. T. Shaw, Party of First Part. W. J. Spice, Geo. W. Linn, Parties of Second Part. Witness to signature party of second part: L. A. Shaw." The wheat was sown, and on January 31, 1903, the appellant, Moore, filed a homestead entry on the land. The appellees, Linn and Spice, when harvest time came, offered to cut and care for the wheat under the contract, but Moore refused to let them go on the place, but cut the wheat, through his employé, A. H. Prough; and Linn and Spice commenced this action to replevin the wheat, and judgment was rendered in their favor for the delivery of the wheat, or, if the property be not returned, then that they have judgment for $140 and costs, taxed at $73.90.

The plaintiffs in this case should not have recovered. When the entryman, Shaw, relinquished back to the government, the government took the land free from any burdens of any kind. Shaw could not make a contract which would in any way prevent the government from conveying to any other person an absolute estate and full and complete possession. Linn and Spice could not acquire rights to occupy the land greater than the rights of Shaw. Under the law Shaw could voluntarily relinquish the land, or the government might cancel the entry for failure on his part to comply with the law. In either event the government would not only become reinvested with the absolute right of possession, but the legal title to the growing crops would revert to the government, because growing crops, in the absence of contract, pass with the conveyance of real estate; and it has been held that where the government sells land to one, or permits one to file a homestead entry on a piece of government land, the purchaser or entryman not only acquires the absolute right of possession, but also title to all improvements and growing crops thereon. Floyd v. Ricks, 14 Ark. 286, 58 Am. Dec. 374; Rasor v. Qualls, 4 Black f. (Ind.) 286, 30 Am. Dec. 658; Boyer v. Williams, 5 Mo. 335, 32 Am. Dec. 324; Reservation State Bank v. Holst, 17 S. D. 240, 95 N. W. 931, 70 L. R. A. 799; Hiatt v. Brooks, 17 Neb. 33, 22 N. W. 73. As between Shaw and the plaintiffs the contract could be enforced; but it could not be enforced as against the United States after the cancellation of Shaw's entry, or as against a subsequent entryman. When the appellees planted the wheat, they took chances on the entry of Shaw being canceled before the harvesting of the same. If this contract can be enforced, then one may make a valid lease for a term of years, whereby he may plant the entire tract embraced in a. homestead entry to fruit trees, paying therefor one-third of the fruit, and hold the same

as against the United States or its grantees | appellees could recover damages from Shaw until the expiration of the lease, although the entryman fails to comply with the law and the entry is canceled shortly after the lease began to run. The difference between such a case and the one under consideration is of time only, and not in principle. When Shaw's entry was canceled, the rights of Linn and Spice in the growing crops were forfeited to the government, the same as those of Shaw.

There is one other reason why the appellees must fail to recover. The contract in question is not a lease of the land sowed to wheat. The contract nowhere provides that the possession of the land shall be in the appellees until the harvesting of the crop. The contract is simply an ordinary cropper's contract, which the courts have almost universally held does not create the relation of landlord and tenant. In volume 18 of the Am. & Eng. Enc. of Law (2d Ed.), at page 173, it is said: "The question whether an agreement constitutes a lease or an occupancy on shares has chiefly arisen in the case of agreements relating to farming lands, whereby one party agrees to cultivate the land and is to receive as compensation therefor a share of the crops grown. Under such an agreement the relation of the parties is not that of landlord and tenant"-citing a long list of cases from Alabama, Arizona, Arkansas, Connecticut, Delaware, Georgia, Illinois, Iowa, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, New Jersey, New York, and other states. As to whether or not the

we express no opinion; but they could not recover from Moore and Prough the value thereof. As far as Prough was concerned, he was only the employé of Moore. He received no part of the grain, and therefore neither legally nor equitably should pay for the same. Contracts to pay for improvements placed upon a tract of land by one entryman with another, in consideration of the former relinquishing in order that the latter might file on the same land, have been upheld; but that is not this case. Moore agreed to pay, and paid, the original entryman, Shaw, $1,300 for his improvements, and the wheat in question was growing on the land at the time, and Moore had no knowledge that the appellees claimed any interest therein until he had filed his homestead entry on the land.

It is also contended that the trial court committed error in refusing to admit in evidence Moore's homestead filing receipt. We are of the opinion that the instrument should have been admitted; but the appellant suffered no injury by reason of the exclusion thereof, because the witnesses were permitted to testify fully regarding such entry, and the testimony in relation thereto was not disputed.

For the reasons stated, the judgment of the lower court is hereby reversed, and the appellees' cause of action dismissed, at their cost. All of the Justices concurring, except GILLETTE, J., who presided at the trial below, not sitting, and IRWIN, J., absent.

(76 Kan. 345)

BERRY v. CRAIG.

(Supreme Court of Kansas. July 5, 1907. Rehearing Denied Oct. 14, 1907.) ACTION JOINDER OF CAUSES OF ACTION BROKERS-SUIT FOR COMMISSIONS.

In a suit for commission, a real estate broker may join a count for the reasonable value of his services with a count based upon an express contract to pay a stated commission. (Syllabus by the Court.)

Error from District Court, Morris County; O. L. Moore, Judge.

Action by W. O. Craig against Carrie Berry. Judgment for plaintiff, and defendant brings error. Affirmed.

Thad B. Landon, L. B. Kellogg, and Frank P. Sebree, for plaintiff in error. E. H. Gamble, for defendant in error.

BURCH, J. Carrie Berry owned a stock ranch lying in Morris and Chase counties. H. S. Boice of Kansas City, Mo., was her general agent. As a result of negotiations with Boice, W. O. Craig, a real estate agent of Kansas City, Mo., undertook to find a purchaser for the ranch. He employed T. Morris of Alma to assist, agreeing to divide the commission with him. Morris enlisted the aid of Fred Miller and Henderson Bros., also of Alma. Miller brought the land to the attention of P. H. Dunn and Hercule Pessemier, of St. Marys. Miller and Dunn visited the land with the expectation of purchasing an interest in it with Pessemier, but they abandoned their purpose to buy, and Pessemier finally purchased direct from Boice. Craig sued Berry for his commission, and recovered. Numerous errors are assigned, but they may all be disposed of briefly.

The petition contained two counts. In the first it was alleged that the plaintiff was employed to find a purchaser, that he did so, and that his services were reasonably worth a stated sum. The second count alleged that the defendant's agent promised to pay the sum named as a commission for the services rendered. At the beginning of the trial, the defendant moved the court to require the plaintiff to elect between the two counts, but the motion was overruled, evidence was introduced in support of each, and the claim in each was submitted to the jury who found an express contract. The ruling was correct. The two counts were entirely consistent. Neither contradicted the other. The facts stated in the first might be true and the facts stated in the second also might be true. If an express contract existed, recovery could not be had upon an implied contract. but, to meet possible exigencies of the proof, the plaintiff had the right to go to the jury upon both sets of allegations. Take the case of a note given by a debtor's agent in settlement of an account. It would be manifestly unjust to oblige the creditor to stake his entire case upon his ability to prove authority to sign the note, and he ought to be allowed 91 P.-58

to join a count on the note with a count on the account. So here Boice might deny an express promise, Craig be unable to sustain the burden of proving it, and thus lose, although clearly entitled to recover the value of his services. This form of pleading has been recognized by this court (Edwards v. Hartshorn, 72 Kan. 19, 82 Pac. 520, 1 L. R. A. [N. S.] 1050. See, also, Campbell v. Fuller, 25 Kan. 723, 728), and conforms to the usual practice under the Codes. Cyc. 749; 5 Enc. Pl. & Pr. 321 et seq.; Bliss, Code Pl. (3d Ed.) § 120. The advertisement of the property by Craig was accompanied by evidence tending to show that Boice knew of it and asked what returns were obtained from it. Therefore it was relevant to prove authority. For the same reason, evidence relating to efforts to make a sale to Woods of Strong City was properly admitted.

Objections to evidence relating to the value of the plaintiff's services need not be canvassed, since the jury found an express contract.

Without discussing separately the various assignments of error raising the question, it is sufficient to say that Boice employed Craig, and that Craig was clearly the procuring cause of the sale. The fact that Miller and Dunn, who were not known to Craig, were at one time prospective purchasers, does not affect Craig's right to a commission. The special findings are not inconsistent with, but support, the general verdict, and the defendant is not entitled to judgment upon them.

The motion for a new trial was properly overruled; and the judgment of the district court is affirmed. All the Justices concurring.

(76 Kan. 247)

DAVIDSON et al. v. HUGHES et al. (Supreme Court of Kansas. July 5, 1907. Rehearing Denied Oct. 14, 1907.)

1. PLEADING AMENDMENT AFTER DEMURRER SUSTAINED-TIME FOR MOTION.

Where a demurrer to an answer is sustained, and the defendant stands upon his exception thereto, and judgment is rendered against him and he takes additional time to prepare a case for appeal to the Supreme Court, and when. after more than three days have elapsed and the term of court has expired, he files a motion to set aside the judgment and to be allowed to file an amended answer, such motion is out of time, and cannot be considered.

2. DAMAGES-LIQUIDATED DAMAGES.

When at the execution of an oil and gas lease only $1 is paid to the grantors therefor, and the grantees agree, as the principal considcration, to complete three wells on the premises within 12 months from the execution of the contract, or to pay $500 "as a forfeit," such agreement of payment on default will be regarded as a provision for liquidated damages, and not as a penalty.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 15, Damages, § 164.]

(Syllabus by the Court.)

Error from District Court, Chautauqua County; G. P. Aikman, Judge.

Action by E. S. Hughes and others against J. E. Davidson and others. Judgment for plaintiffs, and defendants bring error. Affirmed.

Rossington & Smith, Samuel Barnum, and Gunnell & Chinn, for plaintiffs in error. Brooks & Spencer, for defendants in error.

SMITH, J. Hughes and wife, owners of certain lands, executed a so-called oil and gas lease thereof to Davidson and others, which lease contained the following provision: "The lessees agree to commence drilling a well on the land above described, one well in (3) months, 2 additional within one year from the above date. If said lessees fail to complete 3 wells within 12 months, as above provided, then and in that case said lessees agree to pay $500.00 (as a forfeit) to said lessors at the expiration of that time." The plaintiffs in error failed to do anything under the lease for more than 12 months, and Hughes and wife commenced this action to recover $500 under the provision. Thereafter an answer was filed which admitted the execution of the lease and substantially all the allegations of the petition, and set up the following defense thereto: "That although the contract of lease mentioned in and filed with the petition herein contains the provisions set out in clause 4 of the petition, and although defendants did not complete the three wells on the premises described in said lease within 12 months from and after its date, yet defendants say that said provisions and the failure of defendants to comply with its said terms do not give plaintiffs a right to recover of defendants the sum of $500, or any other sum. Defendants, further answering, say that during the latter part of the year 1904, and long before the expiration of the time for drilling said wells under the lease, the price of oil greatly declined, the market thereof declining more than half, and there became and was no market for oil in the Kansas field; that by reason of the decline in the price of oil, and the failure of the Prairie Oil & Gas Company, it being the only purchaser thereof in the Kansas field, to buy the same, drilling and development for oil in the Kansas field became and was practically ceased. and not only was plaintiff not damaged by the failure of defendants to drill said wells as provided in said lease, but defendants allege that their failure so to drill was and is beneficial to plaintiffs, for the reason that the oil is more valuable in the ground than to be evaporating at the surface, by reason of there being no market for the same and the inability to sell the same at any reasonable price. Wherefore, plaintiffs having sustained no damages by reason of defendants' failure so to drill as aforesaid, the defendants pray that they may be permitted to go hence without delay, and recover their costs herein expended." To this answer a

demurrer was sustained October 7, 1905, and the defendants made no application for further pleading, but stood upon their exceptions to the ruling, and the court rendered! judgment in favor of the plaintiffs in the sum of $500 as prayed for. Time was given, presumably upon the application of defendants, to make a case for appeal to the Supreme Court. Thereafter, on November 17, 1905, the defendants, on notice, presented to the judge of the district court at chambers their motion to set aside the judgment of the court and for leave to file an amended anThis application, filed 10 days after judgment and after the expiration of the term of court, was not made in time. See Code Civ. Proc. § 308 (Gen. St. 1905, § 5204). If the defendants considered themselves entitled to any relief; they should have filed a petition under the provisions of section 310 (Gen. St. 1905, § 5206).

We have, then, only to consider whether the petition stated a cause of action, and whether the answer stated any defense thereto. The petition is based on the provision of the lease above quoted without any special allegation of damages, and the answer states no defense except the affirmative allegation that the plaintiffs suffered no actual damages by reason of the failure of the defendants to complete the wells provided for in the contract within the prescribed 12 months. Is an allegation of actual damages essential to the sufficiency of the petition? Or, which is practically the same question, does the answer of "no resulting damage" constitute a defense to the agreement to pay, in default of performance, $500? The language of the contract is that, upon default, the $500 is to be paid as "a forfeit," and the question to be solved is whether under all the circumstances this "forfeit" was intended as a penalty, as rental, or as liquidated damages. The language of the contract is of itself not conclusive. The consideration for the contract at its inception was only $1, and it is apparent that the real inducement which led the owners of the land to make the grant was the promise of the grantees to do the stipulated things within the stipulated time. Performance thereof might result in great profit to the grantees, and failure to perform and the exclusion of all other prospectors from the premises, who might desire to purchase the privileges, may, under the circumstances, be presumed to have resulted in damage. The extent of such damage could only be conjectural, and would be difficult, if not impossible, of specific pleading or specific proof. In view of these evident considerations, we think the parties agreed upon the payment of $500 as liquidated damages in case of default by the grantees, and it seems not an unreasonable, but a very reasonable, provision under the circumstances. See 13 Cyc. 97 et seq; Monmouth Park Ass'n v. Wallis Iron Works, 55 N. J. Law, 132, 26 Atl. 140, 19 L. R. A.

456, 36 Am. St. Rep. 626; Woodland Oil Co. v. Crawford, 55 Ohio St. 161, 44 N. E. 1093, 34 L. R. A. 67; Morse v. Rathburn, 42 Mo. 594, 97 Am. Dec. 359; Smith v. Smith, 4 Wend. (N. Y.) 468; Streeper v. Williams, 48 Pa. 450; Sutton v. Howard, 33 Ga. 536; Cheddick's Adm'r v. Marsh, 21 N. J. Law, 463; Gibson v. Oliver, 158 Pa. 277, 27 Atl. 961; Jaquith v. Hudson, 5 Mich. 123.

We conclude that the petition stated a cause of action, and that the demurrer thereto was properly overruled, that the answer stated no defense, and that the demurrer thereto was properly sustained.

The judgment is affirmed. All the Justices concurring.

(77 Kan. 842)

DAVIDSON et al. v. HUGHES et al. (Supreme Court of Kansas. July 5, 1907. Rehearing Denied Oct. 14, 1907.)

Error from District Court, Chautauqua County; G. P. Aikman, Judge.

Action by O. E. Hughes and others against J. E. Davidson and others. Judgment for plaintiffs, and defendants bring error. Affirmed.

Rossington & Smith, Samuel Barnum, and Gunnell & Chinn, for plaintiffs in error. Brooks & Spencer, for defendants in error.

PER CURIAM. This case was briefed and submitted with No. 15,111, between the same parties as plaintiffs and defendants in error. 91 Pac. 913. In this case a larger consideration was paid by the grantees at the time of executing the contract, yet we are constrained to hold that the same considerations prevail, and the judgment herein is affirmed on the authority of that case.

(40 Colo. 440)

INTERNATIONAL TRUST CO. v. KEEFE MFG. & INV. CO.

(Supreme Court of Colorado. July 1, 1907. Rehearing Denied Oct. 7, 1907.) BONDS-PERFORMANCE.

Where a bond to secure a contract to build a public schoolhouse, providing that the contractor would pay for all material and labor and that no liens should be filed, stipulated that it should be annulled on acceptance of the building, and the building was accepted before one furnishing material to a subcontractor knew of the bond's existence or made any claim thereunder, and consequently before he relied thereon, the bond became functus officio, and the one so furnishing the material could not thereafter enforce it.

Error to Arapahoe County Court; Ben B. Lindsey, Judge.

Action by the Keefe Manufacturing & Investment Company on a bond against the International Trust Company. Judgment for plaintiff, and defendant brings error. Reversed.

Macbeth & May, Benedict & Phelps, and Doud & Fowler, for plaintiff in error. F. A. Williams, for defendant in error.

CAMPBELL, J. The board of education of school district No. 1 in Arapahoe county entered into a contract with W. E. Towers whereby he agreed to build a public school building for a named consideration according to certain plans and specifications, to pay all artisans, materialmen, and laborers doing work on or about the building, and that no liens should be filed thereon. At the same time Towers, as principal, and the International Trust Company, as surety, gave to the board a bond, the condition of which was that, if Towers performed all of his promises and agreements contained in the contract, the bond would be void; otherwise, it was to remain in force. Towers sublet the brickwork upon the building to Charles H. Smith, and Smith made a contract with the Keefe Manufacturing & Investment Company for furnishing the brick to him. Towers paid Smith all that was coming to him under the contract. Smith did not pay to the Keefe Company for all the brick which it furnished; the balance due being about $1,600. The building was accepted by the board in December, 1901, and the board paid Towers the entire balance due him May 12, 1902. The bond expressly provided that it should be annulled on the acceptance of the building by the board. On the failure of Smith to pay to it the balance due, the Keefe Company, May 28, 1902, brought this action against the International Trust Company, as surety on the bond, to recover the same, and alleged in its complaint, in addition to the foregoing facts, that, relying upon this bond, the plaintiff furnished and delivered the brick to Smith. The answer of the surety company denied that plaintiff relied upon this bond in furnishing brick, and as a separate defense alleged that, prior to the assertion of any claim or demand by plaintiff against Towers, or the board, or the defendant surety company, the board accepted the school building in December, 1901, and then canceled and annulled the bond given to it by the defendant, and thereby released and discharged the defendant from all liability.

It will be observed that this action was instituted after the annulment and cancellation of the bond, and after the final payment by the board of the balance due Towers under his contract. There was no evidence by plaintiff that it furnished the brick in reliance upon the bond. Its allegation to that effect in the complaint was denied by the answer, and, so far as the record discloses, plaintiff made no claim whatever against the defendant under this bond until this action was begun. The argument of counsel is largely devoted to the meaning of the bond-the plaintiff maintaining that the contract therein was made directly and primarily for its benefit, and was

« ForrigeFortsett »