180 P. 430 | Utah | 1919
Plaintiff, in this proceeding, prays for a cancellation of a written lease made between him and defendant; for damages claimed to have been sustained by reason of the failure of. defendant to keep th terms of such written agreement. Defendant denied liability, and, by way of counterclaim, asked judgment as damages against the plaintiff for failure on his part to keep certain covenants of the lease and judgment for certain moneys alleged to have been received by the plaintiff for the sale of produce taken from the leased premises.' In reply plaintiff denied the allegations of the counterclaim.
Trial was had before the court and a jury. At the close of plaintiff’s 'case, the court, on defendant’s motion, granted a nonsuit against plaintiff. At the termination of the case the court instructed the jury to return a verdict against plaintiff ■for one-half, less certain credits owing by defendant, of the amount received by the plaintiff for the produce sold from the premises. From that judgment plaintiff appeals.
The exclusion of certain testimony offered by plaintiff, granting the nonsuit and directing a verdict for the defendant upon the counterclaim, is assigned as error.
By the terms of the written lease plaintiff, as party of the first part (designated as such in the lease), let to the defendant, as party of the second part, for a term beginning March 1, 1917, and ending March 1, 1922, certain farming land-located in Utah county. The contract, among other things, provides that the first party shall construct all necessary buildings on the premises, “also to furnish all implements necessary to run said farm or farms, and to stock said farm with cattle, hogs and chickens as fast as said second party can provide feed and be able to care for same, provided that said stock, etc., be fed out of undivided crops raised on said farm. ” The second party undertook to give to the plaintiff one-half of all proceeds from the farm in grain, hay, cattle, hogs, etc. It was further provided that the second,party is to feed the ani
At the trial, upon objection of' the defendant, the court refused to permit plaintiff to testify to any failure on the part of the defendant to keep the terms of the lease
“This agreement, made and entered into this 1st day of March, A. D. 1917, by and between A. A. Johnson of Pleasant Grove, Utah 'County, Utah, as party of the first part, and Ernest Shelley of American Fork, Utah, as party of the second part.”
"We conclude that the relationship of landlord and tenant existed from the actual date of the agreement between the parties, which, as stated by themselves in the written lease, was March 1st; that in view that the lease as written on March 1st was subsequently adopted, therefore from that time on both parties were bound by the terms of the lease establishing such relationship, and either party would be liable to the other for failure to keep the covenants as. therein stated. It was therefore error on the part of the court to refuse to hear the testimony offered by the plaintiff, if otherwise competent, to establish a breach on the part of the defendant during that time. If such proof tended to show damages, the question should have been submitted to the jury.
True it is that the proof admitted on the part of the plaintiff failed to show any definite or actual damages in dollars and cents sustained by the plaintiff by reason
In the assignment of errors complaint is made that the court failed to make findings upon the issue of plaintiff’s right to have the lease terminated and canceled.
It follows that the judgment of the district court must be reversed. Such is the order. The cause is therefore remanded