Scheimer v. James

PREWETT, P. J.,

pro tem.

On February 11, 1919, the parties to this action entered into a written contract establishing a partnership between the appellants on one side and the respondent on the other. The purpose of the partnership was the propagation of turkeys for the market. The respondent was constituted as the active manager of the business. The appellants filed their complaint, alleging various acts of the respondent as breaches of the partnership contract, and praying an accounting and dissolution. The respondent, by way of answer and cross-complaint, admitted the existence of the partnership, denied the commission of the breaches charged against him, and alleged the destruction by appellants of several thousand turkeys by flooding the land, invading the premises with large numbers of stock, and various other alleged wrongs. He asked for $5,625 and the jury by their verdict awarded him $5,280, which sum the court subsequently reduced to $4,054. The court adopted the verdict found adversely to the appellants on the other issues and rendered judgment accordingly.

The appellants inserted in the partnership contract certain provisions which, in effect, amount to a lease by them to the respondent or to the partnership of a tract of land situated in the county of Glenn containing about 3,600 acres. This leasehold portion of the contract declares that the appellants “give and demise unto the said party of the second part, certain specific rights and privileges as hereinafter mentioned to those pieces or parcels of land, etc.,” and describing the entire 3,600 acres. It further provides that the respondent “agrees to use the above described land only as ■ a place upon which to incubate, breed or hatch, feed and care for and prepare for market, fowls commonly known as turkeys.”

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If there were no other descriptions or limitations in the contract, it would at once be seen that the appellants leased the entire tract of 3,600 acres for above purposes. There is in the contract, however, a limiting provision which reads as follows: “That he will use diligent care to keep said turkeys off from and away from any and all crops growing on said land.” Small portions of the tract were then bearing growing crops. It is clear that it was not contemplated that the agreement to “use the above described land” should extend to the whole of it. The respondent does not claim the whole of the tract, but contends that it was orally understood that he should have at least 160 acres thereof embracing the portion upon which the buildings are located. He further claims that the appellants placed him in possession of the buildings and the surrounding territory and that he remained in possession thereof until the commission of the wrongs complained of by him.