Doi v. McMurry

CHIPMAN, P. J.

Plaintiff leased from defendant a fruit orchard of about twenty acres for the term of three years from October 16, 1916, agreeing to pay as rental

[516]

the annual sum of one thousand dollars. The lease provided that “all of the fruit produced upon the premises hereby leased must be delivered to the Auburn Fruit Exchange in the name of the party of the first part (J. B. McMurry), all transactions, accounts, statements, account sales, and checks to be issued in the name of the party of the first part.” The complaint alleged that the fruit crop of 1917 was so delivered and the defendant received therefor the sum of $4,493.36, that a portion of this was paid to plaintiff, but that the defendant withheld the sum of $639.92, which, together with an unknown amount .for rebate, is due the plaintiff. The prayer was for an accounting and a judgment for whatever amount was found due. The answer claimed that no amount was due plaintiff in consequence of certain services performed for him by ¡ defendant and his wife and by reason of damage done to the orchard through the want of proper care and attention on the part of plaintiff. Affirmative relief was, indeed, therein demanded and the same matters were set up by way of cross-complaint, and therein it was sought to have the lease rescinded and defendant restored to the possession of the land, together with damages for said injury. However, it appeared at the trial that an agreement had been reached by the parties for the restoration of the premises, and that feature was consequently eliminated from the case. The court found that the value of the services performed for plaintiff as aforesaid and the amount of the damages suffered by defendant equaled the amount .due plaintiff under said' lease, and rendered judgment for defendant for costs. After an examination of the record, we may say that there is substantial support for the finding that said services were rendered as claimed and were of the value charged against the plaintiff. The doubtful proposition relates to the sum of $481.59, which was allowed-as an offset for injuries done to the premises. While the answer refers to several particulars in which plaintiff failed to comply with his agreement as to the care. of the place, it is quite apparent that said award was made principally for his failure to thin the growing fruit and thereby allowing many limbs to be broken and the trees greatly injured.