167 P. 811 | Utah | 1917
This is an action instituted by the plaintiff to recover from the defendant 596 bushels of wheat, or the value thereof, alleged to be $540. The complaint alleges that one O. J. Olson was the owner of 81 acres of land in Box Elder County in April, 1911; that thereafter, on or about the 16th day of January, 1914, Olson sold and conveyed said premises to the plaintiff, Jacob Jensen; that on April 1, 1911, Olson leased the premises to the defendant, P. M. Anderson, for a term of 5 years and 6 months, making the lease terminate on October 1, 1916. The agreement of the parties, as contained in said lease, is as follows:
“O. J. Olson agrees to furnish material and fence said tract of land during the autumn of 1911. P. M. Anderson agrees to plow, clear and burn all brush, cultivate, furnish all seed, and seeding the whole tract of land during the year 1911. It is also agreed that P. M. Anderson shall pay no part or portion to 0. J. Olson of the first and second crops respectively that will be harvested in the years 1912 and 1914, while out of the third crop, which will be grown and harvested in the year 1916, P. M. Anderson shall pay a rental to 0. J. Olson, the amount of equal to one-fourth of the whole crop grown and harvested and threshed from said land, said one-fourth shall be clear and free of all expenses. Mr. P. M. Anderson agrees to plow and crop the whole tract of eighty-one acres every alternate year during the term of this lease as given above.”
It is alleged in the complaint that subsequent to the conveyance to the plaintiff an oral agreement was entered into between the plaintiff and the defendant, whereby the defendant agreed to farm and cultivate the premises for the season of 1915, and give the plaintiff one-fourth of the crop harvested thereon during that year; that during the summer of 1915 the defendant harvested the crop growing upon the land,
“That during the summer of 1915, the said defendant harvested the crops growing upon said premises, and on the 5th and 6th days of August, 1915, threshed 2,38334 bushels of wheat from said grain grown upon said premises.
“That as said grain was threshed, the plaintiff was the owner of and entitled to the immediate possession of one-fourth thereof, and that on the said 5th and 6th days of August, 1915, the plaintiff demanded of the defendant one-fourth of said grain, which was all similar in kind and capable of division.
*519 ‘ ‘ That as said grain was’ threshed, as aforesaid, the defendant wantonly, wrongfully, and unlawfully obtained possession of said wheat, and all thereof, without the plaintiff’s consent, and now, and at all times since said taking, wrongfully and unlawfully continues in the possession of said grain, and wrongfully detains the same from plaintiff, against plaintiff’s will and without his consent.
“That before the commencement of this action, to wit, on the 5th and 6th days of August, 1915, and while the defendant was in the possession of all of said wheat, the plaintiff demanded of the defendant possession of 596 bushels of said wheat, or one-fourth of the total amount of said crop.
“That said defendant still unlawfully and wantonly withholds and detains all of said crop, including.plaintiff’s one-fourth thereof, from the possession of the plaintiff, to his damage in the sum of $540.”
The allegations of ownership and right of possession in plaintiff, together with the further allegation that the possession is unlawfully continued on the part of the defendant, are equivalent to, and contain, at least, by necessary inference or deduction, an allegation that the plaintiff was entitled to the immediate possession of the property at the tiihe of instituting the suit. In addition it is alleged specifically that a demand was made for the possession of the property, and possession refused on the 6th day of August, and on that day the complaint was filed. I do not see how an allegation more specifically showing a right in plaintiff to the immediate possession of the property upon the date of instituting the action could have been made. Smith v. Wisconsin Inv. Co., 114 Wis. 151, 89 N. W. 831.
Complaint is also made of this instruction given by the court :
4 “You are instructed that, under the terms of the lease entered into between O. J. Olson and the defendant, the defendant was entitled to two crops, and as to the third crop, Olson was to have an interest therein, as in the said lease provided. You are to determine this action under the terms of the lease, and if you find that the terms thereof are ambiguous, then the construction as placed thereon by the plaintiff and the defendant is to control. ’ ’
Objection is made that that instruction was outisde the issues, and “that it submitted to the jury the whole case upon the lease from Olson to the appellant, and left it (the jury) to determine whether, under the terms of the lease, respondent was entitled to recover,” and that by so doing the court ignored the issues made by the complaint and answer. It may be doubted whether the question therein submitted to the jury was within the issues, but the court proceeded in the next instruction (No. 5) to tell the jury that their duty was to determine the ownership of the 596 bushels
There appears to be no prejudicial error in the record, and the judgment is therefore affirmed. Respondent to recover costs.