Morey v. Feltz

ALLEN, J.

Plaintiff leased to defendant a farm, consisting of approximately one hundred thirty-seven and one-half acres of land, by a written instrument of date April 9, 1910, for a term of four years beginning August 1,1910. It appears that the premises consist of lowlands lying in what is known as Bois Brule Bottom, in Perry county, about a mile from the Mississippi River. The lease, which is a very informal instrument, provides that plaintiff, the party of the first part, rents and leases the farm to the defendant, party of the second part, for the above-mentioned term, “in consideration hereafter mentioned.” Then follow these pertinent provisions:

“Second party to pay one-third of the wheat delivered at the elevator. The com, potatoes, and pasture and hay land the second party is to pay five dollars per acre, oat land at four and one-fourth dollars per acre; all of said rents to be paid on or before the first day of August annually. . . . It is further understood between the parties hereto that in case of overflow or destruction by water, any crops not entirely destroyed one-third on the premises will be required as rent.”

*658 A further stipulation is to the effect that the lessee will make certain repairs and do other work upon the premises, for the lessor, at seventy-five cents per •day.

This action is for cash rents claimed to be due for the first year, from August, 1910, to August, 1911, aggregating $560.48. The answer is a general denial, ■coupled with which is a counterclaim for $9.84 for labor, and certain small items of materials furnished.

The cause was tried before the court and a jury, and the latter returned the following verdict:

“We, the jury, find the issues in this cause in favor of plaintiff, Margaret A. Morey, and that the •defendant, Grover 0. Feltz, is indebted to her in the sum of $398, and one-third of the oats, and we assess the costs against the plaintiff.”

Thereupon plaintiff’s counsel suggested to the •court that the verdict should be corrected, and the court told the jury that they could not assess the costs, and had them return to the jury-room to correct their verdict. And thereafter, the jury not reporting promptly, the court sent them a written instruction telling them that they had “nothing to do with the assessment of the costs.” Thereupon the jury returned a verdict for plaintiff for $246 “and one-third of'the ■oats.” Judgment was entered upon this verdict, and the plaintiff appealed.

The bill of exceptions before us is in the nature of a skeleton bill, with but a brief summary of the testimony adduced. Plaintiff’s testimony, in chief, is to the effect that there were seventy-eight and nine-tenths acres of corn land on the farm, seventy acres of which defendant. planted in corn, the remainder being left uncultivated; that twenty-six and three-fourths acres were in oats, and one and five-sevenths acres in alfalfa; and that there were nine and three-fourths acres of pasture lands.

*659 Defendant’s evidence tended to prove that there was a great amount of rainfall upon the'leased premises in the early spring of 1911; that on April 30, 1911, a heavy, rain fell, flooding a large portion of the corn land, and destroying nearly all of the oats on a tract consisting of twenty-four and three-fourths acres. Defendant testified that the water stood upon a large portion of the corn land for two or three weeks, rendering the same unfit for cultivation for three weeks, and delaying the planting of his corn. Other witnesses for ■defendant testified that the water stood on the lower land for a week or ten days. And defendant’s evidence is that because of the wet condition of the land the com was damaged by worms, and that on account of the late planting thereof, it was late in maturing and was injured by frost; that worms and frost destroyed about one-half of the com. Defendant’s testimony is further that the nine and three-fourths acres for which plaintiff claims rent at the rate of $5 per acre, as being pasture land, was uncleared land with neither grass nor water upon it; and testimony of witnesses present at the execution of the lease was admitted to show that this land was not regarded by the parties as pasture land, and that it was not intended that defendant pay rent therefor.

Plaintiff’s evidence in rebuttal is to the effect that ■defendant was not delayed in planting his corn crop by any flooding of the premises; that the water from the rainfall of April 30, 1911, which it is said stood in 'the “swags or sloughs,” ran off in a few days, and that because of the subsequent dry season the best corn was raised in these low places; and that only a small portion of the crop of oats was injured by water. In all •eleven instructions were given, and two requested by plaintiff were refused. The questions involved, however, may be disposed of without setting out these instructions.

*660 I. It is clear that the judgment entered upon the final verdict of the jury cannot stand; and this regardless of whether or not that part thereof referring to the oats may be treated as surplusage. The jury may not be permitted to assess the costs against the plaintiff, the prevailing party; and it appears that this is what the jury persisted in attempting to do. Upon finding that the costs could not be assessed against plaintiff in the verdict, the jury proceeded to deduct $152 from the amount which they had previously found to be due plaintiff, thereby evidently attempting to do indirectly that which they could not do directly.

But this is not all. The suit is for such money rent as plaintiff may be entitled to under the terms of the lease; and a verdict of $246 is wholly unresponsive to the issues before the jury. It is apparent from the testimony, and a plat in evidence and before us, that if there be any merit in the defense relative to the rent for the corn land, it affects practically all thereof. While the water in question did not cover all of such land, it does appear that it covered so much thereof, and extended into such different parts thereof, as to affect, if at all, .the planting or cultivation of the corn land as a whole. The money rent for the corn land alone, if money rent was due, would amount to more than $246; on the other hand, if defendant was not liable for cash rent for such land, then the recovery could not be so large as this. • This verdict is unwarranted under any theory of the case, and plaintiff is entitled to have it set aside. [See Cole v. Armour, 154 Mo. 333 , 55 S. W. 476 ; Witte v. Saling, 171 Mo. App. 574 , 154 S. W. 421 ; Ferd Bauer Engineering & Contracting Co., v. Arctic Ice & Storage Co., 186 Mo. App. 664 , - S. W. -.]

II. The defense predicated upon the clause of the lease exempting defendant from the payment of money rent “in case of overflow or destruction by water.’’ *661 pertains to the corn land and the tract of twenty-four and three fourth acres of oats. And the question is whether the flooding of the lands by a heavy rainfall, such as is said to have occurred, and the damage claimed to have been occassioned thereby upon the land devoted to the respective crops last above mentioned, falls within the aforesaid exemption.

We think it clear that there was no “overflow” of the premises, within the meaning of this term in the lease. The lands in question were “bottom” lands, not a great way from the Mississippi River, and it appears that they were subject to overflow from such river, or from bayous or sloughs connecting therewith. Evidently it was an ‘ ‘ overflow ’ ’ from this source that was contracted against in the lease. And an accumulation of water upon the premises from rainfall alone does not appear to be within the ordinary meaning of the word “overflow.”

Webster defines the verb “overflow” as follows: * ‘ To run or flow over the bounds, as water. ’ ’ The same author defines the noun “overflow” as: “A flowing over, as of water or other fluid; an inundation. That which .flows over; either, that which overflows its ordnary limits; as, the overflow of the Nile; or that which exceeds due bounds.” To the same effect are definitions given by other lexicographers. By the use of this term it is manifest that the parties had reference to a rising of the waters of the river or the connecting bayous and sloughs, and a flowing or spreading thereof over the land.

But the language of the lease exempts the lessee from payment of the cash rentals reserved therein, in case of overflow or destruction by water. It is argued, in effect, that this has reference only to such destruction as may be occasioned by water in case of an overflow, in the proper meaning of that term. There is some force in this argument; but there would have been no occasion for using the words italicized above *662 if the intention was to have the exemption apply only in case of an overflow. The clause should be construed if possible so as to give effect to all the words employed therein. And we think that the expression, “destruction by water,” should be held to cover an actual destruction of crops upon the premises by water, though it be by water accumulating from excessive rainfall; and that therefore the jury should be instructed that plaintiff cannot recover cash rent for land, if any, upon which defendant’s crop of oats was wholly or partially destroyed by water accumulating and standing upon such land.

But, in our judgment, the provisions of the lease are not such as to exempt defendant from the payment of the stipulated cash rent for the corn land, under the evidence adduced. As there was no “overflow,” defendant is not relieved from paying this rent unless, as to such lands, there can be said to have befen a “destruction by water,” within the terms of the lease. There was no corn crop in existence, and none planted, at the time of the rainfall in question, and hence none was thereby directly destroyed. The defense in this respect is that the soil became very wet from the water which fell and for a time stood upon it, and that this resulted in producing worms that subsequently damaged the corn crop which defendant planted and endeavored to raise; also that defendant was delayed in planting such crop, by reason of the water upon the land, because of which the corn was late in maturing and was injured by frost. But such lossess, if any, under the circumstances appearing, we think do not fall within the term “destruction by water.” The alleged indirect cause of such losses appears to be altogether too remote. In our judgment it cannot be gathered from the terms of the lease that the lessee is to be relieved from the payment of money rent because of delay in planting, or an unfavorable condition *663 of the soil, due alone to excessive rainfall, whatever may result therefrom.

How the matter should he viewed in case of an actual overflow preventing or delaying the planting of a crop, is a question not before ns. But, in the absence of an overflow, or of a “destruction” directly .caused by water upon the premises, we think that the defendant cannot be relieved from the payment of the cash rents reserved in the lease; and that therefore the trial court should have instructed the jury to the effect that plaintiff was entitled to recover such rent for the corn land.

ni. That it was proper to admit the testimony of witnesses as to the declarations of the parties at the time of the execution of the lease, to show what was intended to be included in the term “pasture land,” cannot be doubted. While parol contemporaneous evidence is not admissible to vary or contradict the terms of a written instrument, such evidence is admissible to identify the subject-matter of the contract, when this is not definite and clear, in order to reveal the true intent of the parties. Prom the lease alone it is impossible to tell what is intended to be included within the term “pasture land.” And though the parties may not testify as to what was intended (Kessler v. Clayes, 147 Mo. App. l. c. 93, 125 S. W. 799 ), nor the witnesses state their conclusions, where there is an ambiguity in the instrument, as here, the intention of the parties may be found by'proof of the surrounding facts and circumstances and of their own contemporaneous declarations. [See Ellis v. Harrison, et al, 104 Mo. 270 , 16 S. W. 198 ; Laclede Construction Co. v. Tie Co., 185 Mo. 25 , 84 S. W. 76 ; Pulitzer Publishing Co. v. McNichols, 170 Mo. App. 709 , 153 S. W. 562 ; Coffman v. Saline Valley R. Co., 183 Mo. App. 622 , 167 S. W. 1053 .]

*664 The judgment is reversed and the cause remanded, to be proceeded with in accordance with the views expressed above.

Reynolds, P. J., and Rortoni, J., concur.