130 Ky. 328 | Ky. Ct. App. | 1908
Opinion of the Court by
Affirming.
The appellant, Mary C. Feland, is the owner of and -resides upon a valuable farm in Lincoln county. Her husband being an invalid, appellant, in October, 1905, induced the appellee, R. L. Berry, her son-in-law, then a resident of Bath county, to remove to her farm and cultivate 175 acres thereof in the year 1906, under the following contmit: “This contract entered into between Mrs. A. M. Feland, party of the first part, and R. L. Berry, party of the second part, said Mrs. Feland rents to R. L. Berry 175 acres of land more or less to cultivate 100 acres for corn, 50 acres for hemp, and 20 acres for tobacco, the com to be well cultivated by party of the first part and one-half of said corn to be put in crib for Mrs. Feland and her half of fodder to be set up and tied, one field of com known as Pike field, and two more fields on each side of garden, said party of the first part rents said second party 50 acres for hemp, bluegrass sod, known as hill field, said second party agrees to cultivate well and deliver Mrs. Feland when it is sold, said R. L. Berry gets three-fifths of money and Mrs. Feland" two’-fifths; also 20 acres for tobacco-, 15 acres in b&dkwdods, and rest 5 in
In addition to the damages mentioned appellee also sought to recover of appellant in the action $75 damages for a further breach of the rent contract, alleged to have been committed by her in taking-into her house, after appellee removed to her residence, her son, A. M. Feland, Jr., and making him a member of her family, the son doing nothing to support himself, or in rendering assistance in running the farm; and this, it was averred, added to appellee’s burden by putting him to additional labor and expense, as under his contract with appellant he was compelled to.provide “one-half of the living expenses” of the family. It was further averred in. the .petition that, at the time the rent contract was entered into, appellant agreed that the family, the half of whose support he was required to provide, should be composed of appellee and his wife, appellant, her husband, and unmarried daughter. That appellant then promised him her son.should not reside with or become a member of the family, and that in inviting and receiving, him into the family she violated that promise and her contract with appellee, and increased the expense of maintaining the family during the son’s stay with them at-least $150, one-half of which, $75, appellee was compelled to pay, and did pay. We omit mention of other items of damages claimed in the petition by appellee, as they were rejected by the lower court, and appellee has not taken
The averment of the answer and counterclaim were controverted by reply, and upon the issues thus formed the ease went to trial before the court, the parties having waived a jury. The court’s findings of fact, as shown by the record, were: First, that appellee violated the contract, in that he failed to properly care for the corn and hemp crops; second, that appellant violated the contract, in that she failed to furnish on the ground material for the building of the barn in time, and that the barn was not built because of her fault; third, that A. M. Feland, Jr., became a member of appellant’s family, which was not contemplated by the parties at the time the contract was entered into. Resulting from the above conclusions of fact.
The failure of appellee to prosecute a cross-appeal makes it unnecessary for us to consider the ruling of the circuit court in allowing appellant $150 damages for appellee’s improper cultivation of the corn and hemp crops. We concur, however, in that court’s conclusion that appellant’s failure to furnish on the ground material for the building of the barn prevented its erection by appellee in time to house and save the tobacco. The contract declares that, “Mrs. Feland agrees to have a twelve-acre barn built, she to pay all cost for same. * * *” The language quoted imposed no duty upon any person other than appellant to build the barn. By necessary implication she was to furnish the material for the building, and place, or cause it to be placed, where the building was to be erected; that is, on the ground. The next words of the clause relating to the barn, are: “Said R. L. Berry agrees to attend to the building of the same. * * *“ There is not here an intimation that appellee was to see to the selection of the material, to bargain for it, or have it carried to the place where the barn was to be erected. But he was required to ‘ ‘ attend to the building of same;” that is, to control the work of erection or construction, after the material was placed on the ground. The remaining words of the clause are:
Our construction of the contract appears to be sustained by much of the evidence. Appellee does not seem to have been known by the people of Lincoln county, and was apparently without money or credit. Although appellant was to pay all cost of building the barn, it appears from the evidence that she neither
It is, however, insisted for appellant that the amount of the judgment obtained by Clark against appellee can not be recovered by the-latter of appellant in this case. We do not think this contention sound. It was, in substance, alleged in the petition, and" established by the evidence, that when appellant contracted to build the barn she knew Clark was to cultivate in tobacco 10 of the 20 acres appellee had agreed to produce on her land, and that the ba'rn she was to build was to be. used for housing Clark’s tobacco as* well as appellee’s. The petition further alleged that in Clark’s action against him appellee “made a reasonably efficient and skillful defense, employed counsel,” etc., and that “judgment was duly rendered in favor of Clark for $500. and' $59 costs, which was paid’ hy Berry.” The averments quoted were not denied by appellant’s answer. As between Clark and appellee, it was clearly the latter’s duty to furnish the former a tobacco barn, and equally clear that appellee could not escape liability for the failure to furnish the barn upon the ground that it was appellant’s fault. As between appellee and appellant, the issue was as to whose fault it was, and as to the construction of the contract. Appellee’s action against appellant rests upon the rule of contract law that
In the instant case appellant, at the time of the making of the rent contract with appellee, was not only informed of his contemplated subcontract with Clark, and of his need of the barn she agreed to build, but she consented to the contract with Clark. The above doctrine has been approved by this court in
We do not think the allowance to appellee of $25, on account of his maintenance of appellant’s son, was improper. In making him a member of her family appellant violated her contract with appellee. This allowance, properly speaking, was not for the board of her son, which, it is claimed, could not be recovered in the absence of a contract to pay board. In entering into the contract with appellant, appellee assumed the burden of bearing one-half of the expense of supporting the family, to be composed of himself and wife, appellant, her husband and daughter, and the family
We must, in an action at law, where the trial is had before the court and without the intervention of a jury, give to the judgment the same weight we would accord to the verdict of a properly instructed jury. Hence the judgment should stand, unless based on substantial error, or unsupported by evidence. We have found no prejudicial error, and there was much evidence to support the trial court’s findings. Wherefore the judgment is affirmed..