Armstrong v. Garate
Before: Hart
Synopsis
Ejectment Against Tenants Under Verbal Lease—Defense of Renewal—Support of Finding—Conflicting Evidence.—In an action of ejectment against tenants who had been holding from year to year under a verbal lease, where the defense was of renewal for another year, and the trial court sustained the defense, and found upon the evidence for the defense that the lease had been renewed for another year, it is held that it is sufficiently supported notwithstanding the conflicting evidence of plaintiff to the contrary. It was for the trial court to determine the weight of the evidence.
Id.—Time of Leasing for Current Year—Construction of Answer— Finding Within Issues.—Where the answer pleads verbal leases from year to year, commencing January 1st in each year from the year 1905 to and including the current year 1909, it does not affirm or negative the time of making the verbal lease in any year, and a finding that the answer is true, and that the verbal lease for the current year was made February 3, 1909, is within the issues. A verbal lease may be made for any current year after its commencement; and the position is not tenable, that the lease pleaded in the answer in ejeetment is not proved, and that the verbal lease proved is not pleaded.
Id.-—-Absence of Special Demurrer—Indefinite Averment—Definite Proof.-—-If the plaintiff in ejectment had desired a more specific and definite averment in the answer as to the time of making the verbal lease for the current year, he might have secured it by specially demurring to the answer; but in the absence of such demurrer, the defendants were entitled to render such time specific and definite by proof.
HART, J.
This is an action in ejectment. The defendants were awarded judgment, from which, on a bill of exceptions, this appeal is prosecuted.
It is not disputed that the defendants held possession of and occupied the land in controversy under a verbal lease from plaintiff, from year to year, from the first day of January, 1905, to the first day of January, 1909; but plaintiff claims that the lease terminated and was not renewed on the expiration of the year ending January 1, 1909, and charges in his complaint that defendants nevertheless continued in possession of the premises after the last-mentioned date against his wish and consent and without right, and have refused to turn over or deliver to him the possession of said premises.
The principal question submitted on this appeal is whether or not the finding that the plaintiff, following the customary manner in which he had theretofore leased the premises to defendants, on the third day of February, 1909, by verbal agreement, leased to the latter said premises for the year ending January 1, 1910. The plaintiff testified, in part, as follows: “I had a talk with Mr. Garate in November, 1908, at my house, myself and Mr. Garate being the only ones present. At this time he wanted to lease the property for a term of years, and I wouldn’t do that. I made no terms for 1909.” On the 7th of February, 1909, plaintiff addressed a letter to the defendants, among other things saying: “On account of fencing the Jones place I don’t think I can rent it to you for this year, as I will have to have the fences open so long before I can get it fenced it will probably damage the crop. . . . When I get it fenced I will have to have more rent for it as I am getting more money invested in it. ’ ’ Subsequently the plaintiff sent a written lease, dated May
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29, 1909, to defendants and requested them to sign it. This they refused to do, and, thereupon, plaintiff leased the land to one Fleming, at a rental of $500 per year ($300 in excess of the sum paid by defendants for the land under the former verbal leases), but plaintiff failed to deliver possession of the land to said Fleming because defendants held and refused to give up possession thereof.
The defendant, Amias, testified that he had “an understanding with Mr. Armstrong regarding the leasing of the property on February 3, 1909, for the year 1909. We had the conversation in the banking-house of the Bank of Lassen County, after I paid Mr. Armstrong what was due him. I gave him- a check for $190.30 or 35 cents, or $190 and some cents. After I gave him the check and now I says, ‘Dan, are we square!’ and he says, ‘Yes.’ I says, ‘Everything satisfactory!’- and he said ‘Yes.’ And I says, ‘Then we are going on for another year!’ and he says, ‘Yes.’ I says, ‘All right; we go on for another year,’ and of course there wasn’t no more said, although we had a conversation before that over some money matters. It was an important matter for me to know, because we had two hundred and fifty or three hundred head of stock on hand and had no place in view where we could feed them and take care of them. ’ ’
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