Scribner v. Carrell

BARNARD, P. J. On December 14, 1950, the plaintiff leased 75 acres of land to the defendant for one year beginning February 1, 1951, and ending January 31, 1952. The lease provided that the rental was to be $5,250 and acknowledged that $3,750 had been paid when the lease was signed. It then provided that the balance of $1,500 “shall be due and payable upon lessor’s completion of repairs to the well and pumping plant which will guarantee lessee sufficient water for the proper irrigation of said demised premises. ... It is hereby agreed that the above well and pump work upon which hinges the payment of said Fifteen Hundred ($1500.00) and no/100 Dollars balance shall be completed by Lessor by February 15, 1951.” Admittedly, the lessee was not given possession until February 13, 1951, and the repairs to the well and pumping plant were not completed until April 8, 1951. A demand for the payment of the $1,500 was later made and refused. A notice was served on July 10, 1951, demanding payment of the $1,500 within three days or possession of the premises. This action was filed on July 20, 1951, asking judgment for restitution of the premises; for the sum of $1,500; and that the amount found due be trebled because of defendant’s wilful and deliberate refusal to pay said rent or surrender possession.

The complaint set forth the lease, including the provisions above mentioned, and alleged that the defendant received possession of the premises on February 13, 1951. It then alleged that the provision of the lease requiring the completion of the well and pump work by February 15, 1951, as above quoted, was “altered and modified by an executed oral agreement” entered into on or about February 15, 1951; that by the terms of this oral agreement the defendant agreed to give the plaintiff an extension of time in which to complete the repairs to the well and pumping plant, and to pay the $1,500 upon completion of the repairs in accordance with the oral agreement; that the defendant promised to give [3]the plaintiff additional time in which to complete the repairs either np until the defendant was ready to start his “preirrigation” for a cotton crop, or up to the time he had completed his preirrigation and before he was ready to commence his summer irrigation; that as a consideration for the oral agreement the plaintiff agreed to use his best efforts to complete the repairs before the “preirrigation” was desired, and that if more water was desired for preirrigation he would arrange to use the pumping plant of a Mr. Rising, an adjoining owner, the defendant to pay the fuel cost and the plaintiff to pay the rent for the use of that pumping plant; that as a further consideration the plaintiff, during the latter part of February, 1951, signed a waiver of his rent balance for the purpose of subordinating his rent claim to the lien of a crop mortgage to enable the defendant to get a “budget loan” from a bank; that pursuant to said oral agreement the plaintiff started the repairs on April 3, and completed them on or about April 8, 1951; that pursuant to said oral agreement water was used from Mr. Rising’s pumping plant on the 8th, 9th and 10th days of April, 1951; and that the defendant paid the fuel cost and the plaintiff paid the other costs in connection therewith. The answer, among other things, denied all of the allegations of the complaint with respect to the making of an executed oral agreement, and denied that any amount was due to the plaintiff.