45 Mo. App. 397 | Mo. Ct. App. | 1891
— The original petition in this case was filed June 7, 1887 ; but the cause was tried on an amended petition as follows: “Now comes the plaintiff and by leave of the court says for his amended petition, that on April 1, 1887, the plaintiff was in possession and had control of a pasture of three hundred and twenty acres of land situated in Ralls county,. Misouri; that about said last-named date the defendant wrongfully entered upon the said premises and took possession of the same and turned thereon a lot of cattle and other stock, and pastured and consumed the grass thereon during the season of 1887 to plaintiff’s-loss and damage in the sum of $400, for which said sum and costs plaintiff asks judgment.” The answer was a. general denial. Prom respondent’s abstract of the evidence and appellant’s statement, we gather the facts te be about as follows: In the year 1887, plaintiff Cook
At the trial the court at the request of plaintiff gave the following instructions: “The jury are instructed, that if in April, 1887, the plaintiff was in possession of the three hundred and twenty acres of land referred to in the evidence, and the defendant, without authority or consent of plaintiff, turned stock in on said land and used, destroyed or injured said grass and lands, then the jury will find a verdict for the plaintiff for such sum as the jury shall find the plaintiff has been damaged thereby.
“2. The jury are instructed that any agreement made by the plaintiff with the witness Dye to rent his said land to the defendant would not be binding on any of the parties thereto, unless such agreement was in writing or some money paid on the same as a part payment of the rent of the same.”
And the court of its own motion gave the following instruction : “ The court instructs the jury that if they find for the plaintiff the measure of damages is the fair
The following instruction was given for defendant: ■“The court instructs the jury that if they believe from the evidence that the plaintiff had previously to the first ■day of April, 1887, rented the premises in controversy to the defendant, or to the witness Dye, for this defendant, and told said witness Dye to take possession of said premises or turn defendant ’s cattle in the pasture, their verdict must be for the defendant.” There was a verdict and judgment for plaintiff in the sum of $800, and defendant appealed.
I. There is no merit in the objection to the petition. It does not set out two causes of action in one count, as is claimed by defendant’s counsel. The one cause of action is alleged, to-wit, a trespass on plaintiff’s premises with a further allegation of the destruction of the grass thereon, which is nothing more than the setting out an element of damage flowing from such trespass.
II. It seems the trial court refused to give effect to any contract of leasing by the defendant which may have been entered into in March, 1887, for a period of •one year beginning April 1, thereafter, on the ground that, as the same was not in writing, it was barred by the statute of frauds. R. S. 1889, sec. 5186. This ■holding of the court was clearly correct, as decided by us in case of Briar v. Robertson, 19 Mo. App. 66. Such •defense was grounded upon “an agreement that it is not to be performed within one year from the making thereof.”
III. Defendant’s trespass on plaintiff’s land was on April 1, 1887. It was then the one hundred and fifty head of cattle Were turned into the pasture, and they continued there until November following, consuming plaintiff’s grass. This suit was instituted June 7, 1887. At the trial evidence was admitted to show the
Other matters are suggested in counsel’s brief, but “they are not of sufficient importance to warrant notice in this opinion. Upon a careful review of the case we ■discover no reversible error, and the judgment, therefore, of the circuit court is affirmed.