Baird v. Lindblad

ADAMS, P. J.

Plaintiff brought this action to recover the sum of $1,294.80, which it is agreed is the unpaid balance due under a lease by which plaintiff (and her husband, since deceased) leased land to defendant for the growing of tomatoes. It is conceded that the total amount of the rental for the term of the lease was $3,850, upon which defendant paid, at different times, the total sum of $2,555.20, leaving an unpaid balance of $1,294.80. The lease which was dated March 10, 1944, was for a term of nine months from March 1, 1944.

[204]

It was prepared by defendant, the lessee, upon a printed lease form, with portions filled in by typewriting. Following the printed recitation therein that the rental was payable in lawful money of the United States in advance, “in the manner following, to wit: ...” defendant inserted in typewriting, “Last half of first payment due May 1st. Balance due from Riverbank Canning Co., after R.A.C.C. Crop mortgage has been satisfied.” He based his defense to plaintiff’s action upon the ground that the foregoing language shows that the last half of the rental payable under the lease was to be paid out of a special fund, and that said fund never came into existence; that is, that said last half of the rental was to be paid out of any moneys in the hands of the Riverbank Canning Company, to whom defendant sold a portion of his tomato crop, and that, because the crop mortgage which had priority was never satisfied and there was no balance due defendant from that company, plaintiff cannot recover. The trial court rendered judgment for plaintiff and this appeal followed.

The evidence in the case shows the following pertinent facts. Defendant did not deliver the whole of his tomato crop to Riverbank Canning Company, but sold a portion of it to others. After he had paid the first half of the rental due plaintiff, he promised to pay her the balance out of moneys he said he was to receive from dragline work he was doing for a Mr. Cooling. He also promised her he would pay such remainder from moneys he would receive from similar work he was to perform for a Mr. Hershey. Defendant authorized plaintiff to dispose of some tomato dust he had left on the rented premises, and apply the proceeds to the balance of the rental. Plaintiff received $430 for same and it was so applied. Defendant also authorized plaintiff to collect the proceeds of the sale of sheeting and lumber left on the premises and apply the proceeds on the rental balance. Plaintiff received $375 from this transaction. Defendant never denied that he owed plaintiff the balance sued for, nor contended, until her suit was filed, that such balance was payable out of a special fund which never came into existence.