McCaffrey v. Wiley

BARNARD, P. J.

This is an action for damages for the withholding of possession of 120 acres of land for the period from October 1, 1946, to October 14, 1947.

On July 25, 1945, J. B. Cutten, the owner of the land, leased it to the plaintiff for a period of three years commencing on October 1, 1946. On April 11, 1946, Cutten, having overlooked the prior lease, executed an agreement giving the defendant the right to farm the same property for a period of five and one-half years. The defendant took possession on April 11, 1946, in good faith, and remained in possession until October 14, 1947.

On October 24, 1946, the plaintiff commenced an action in ejectment against Wiley to recover possession of the land. The only issue raised in that action was that of the right of possession, and no claim was asserted therein for rents or mesne profits. That action was tried on April 25, 1947, and a judgment for the plaintiff was entered October 14,1947. No appeal was taken and that judgment became final. The defendant had planted barley on the land in October, 1946, but after October 24, and that crop was harvested about the first of June, 1947.

On March 19, 1948, the plaintiff brought this action to recover damages for the wrongful withholding of possession for the year preceding the entry of the prior judgment. The defendant filed a cross-complaint against the owner of the land, seeking to recover from Cutten any amount he might be required to pay in the event the plaintiff was given a judgment.

The court found that the mesne profits from the land here in question amounted to $1,312.77, and that Cutten was liable to Wiley for any loss suffered by him. However, the court found that Wiley had not suffered this loss of $1,312.77 since the plaintiff was not entitled to recover that amount from Wiley. In this connection, the court found that the plaintiff had had a single indivisible cause of action against Wiley for the right of possession and for damages for any withholding

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of possession; that the plaintiff had waived his right to recover damages for wrongfully withholding possession; that the bringing of the present action is an attempt to split a single indivisible cause of action which the plaintiff had prior to his commencing the prior action; and that the plaintiff is not entitled to recover anything from the defendant in this action by way of damages, mesne profits, rentals or otherwise, having exhausted his remedy in the prior action. Judgment was entered that the plaintiff take nothing. While the judgment awarded Wiley certain amounts as against Cutten for his expenses in defending the suits, nothing was awarded him on his contingent claim since the plaintiff recovered nothing against him. The plaintiff has appealed from the judgment.