116 Mo. App. 62 | Mo. Ct. App. | 1906
Action by a landlord against his tenant to recover rent due and unpaid. In October, 1903, the parties signed a written lease, under the terms of which plaintiff leased a farm of one hundred acres in Platte county for the term of one year beginning March 1, 1904, for which defendant agreed to pay as rental the sum of five hundred dollars. Defendant paid two hundred dollars of the rent when the lease was signed, and executed and delivered to plaintiff his promissory note for the remainder of three hundred dollars to become due September 1, 1904. In the petitition, plaintiff pleads the contract of lease, defendant’s possession thereunder, the execution and delivery of the
The rented land lies in the valley of the Missouri river and has been inundated at times when the water flowing in that river has been of extraordinary volume, but is of sufficient elevation to escape invasion from ordinary high water. It is under cultivation, corn being the crop usually grown upon it. The parties met in Independence, where plaintiff lives, and a conversation, followed relative to the renting of the land for the year beginning with the following March and a verbal agreement was made. From this point on, the facts are in controversy and those detailed by defendant will be stated first.
Defendant is a German, who can neither read nor write the English language, and this fact was communicated by him to plaintiff before the written lease was prepared. The parties agreed upon a rental of $5.00 per acre or $500.00 for the farm. Defendant expressed the fear that the land might be overflowed and the crop thereon destroyed, to which' plaintiff replied, “Why, it can’t overflow. If it does overflow, your rent is paid and you don’t owe me a dollar if that crop overflows.” This appeared to satify defendant and then the subject of making a written contract was taken up. Defendant wished to have some third person prepare it, but plaintiff said he would do that and added, “Well, if you are afraid of me, I will go and get a water lease.” He started to leave, then turned to defendant and
The lease actually written was in the usual form and contained no agreement of the character mentioned, but defendant did not learn of the deception practiced upon him until late in the spring of the following year. He entered into the possession of the farm at the appointed time and planted all of it excepting a few acres in corn. During the spring, the greater portion of the land was overflowed four times by water from the river, the last being near the- first of July. The crop on all but thirty-five acres was completely destroyed and the remainder injured. The yield of the entire farm did not exceed about thirteen hundred bushels, which were attached by plaintiff in this action and sold for 1375.00.
Plaintiff, complying with defendant’s request, visited the farm in June and, after making an inspection,
Plaintiff’s version of the transaction appears in this extract from his testimony, “I wrote the lease on a printed form. ... I do not know whether I read to Mr. Redel the copy I kept or the one I gave him. We talked about the matter at the time the lease was signed. ... I told him the land had overflowed in 1903 and I had lost a portion of the crop but once in fifteen years. I did not agree or represent to defendant that if the river overflowed the land, I would give him a rebate on the rent. I did not read to the defendant or purport to read to him out of the lease that if the river overflowed the land, he would not have to pay the rent, that the note would not be due and the $200.00 cash he had paid would be given back to him, and that he was tO' put in the corn, the second time, I to furnish the seed and take corn rent. I did not tell defendant that the lease was what was called a water lease and that under the terms of the lease the laws of Missouri would not allow me to collect one dollar rent in case the land was overflowed and the crops lost.”
As to the damages caused by high water, the witnesses introduced by plaintiff are practically in accord with defendant. They say that the highest water occurred about July 1st and that seventy-five or eighty acres were then under water. They all agree that the crop on at least half the acreage was totally destroyed and that on the remainder, with the exception of .twenty or twenty-five acres, more or less injured. There is no difference among the witnesses relative to the amount of corn produced or its value.
In resolving the questions involved in this contention, we must accept as true the evidence introduced by defendant and reject that of his adversary in conflict with it. Looking at the case from this standpoint, we are without hesitation in declaring that the written contract was procured by plaintiff fraudulently, does not express the real agreement made by the parties and therefore is wholly void and of no effect. The facts that plaintiff knowing that defendant could not read professed to read from the instrument an agreement that he knew was not there, and thereby accomplished his purpose to deceive defendant, are enough to déstroy the instrument and to present the antecedent verbal agreement as the only contract made by the parties.
But plaintiff says that with the written contract eliminated defendant cannot prevail, because under dedefendant’s own statement of the agreement a total destruction of the crop by the overflow of the river was required in order to release defendant from liability under the note, and defendant admits that twenty or twenty-five acres of the crop were not touched by the invasion of water and ten or fifteen acres of the remainder but partially damaged.
It is true the agreement, as stated by defendant, does not expressly provide for the contingency of a partial destruction of the crop from this cause, but the controlling question is: What was the evident purpose and intention of the parties as disclosed by the terms of the agreement in the light of the circumstances under which it was made? Plaintiff argues that the position of defendant logically leads to the conclusion that if all of the crop, save the small fraction of an acre, had remain
The written lease, in terms, prohibited defendant from subletting the premises or any part thereof without the written assent of the landlord, but failed to provide a forfeiture or other penalty for the violation of this provision. We have discarded this instrument, but as it was read over to defendant and no complaint has been made by him against the insertion therein of this agreement, it is fair to assume that it was included in the contract actually made. Defendant, without obtaining the written assent of the landlord, underlet for:
But it is urged that defendant, by subletting, placed himself in a position that prevented him from complying with his agreement to replant corn destroyed by flood and, further, that it would be unjust to per
Finally, plaintiff contends that the judgment should be reversed and the cause remanded because plaintiff’s instructions are “too vague and uncertain as to the measure of damages and gave the jury no basis upon which to estimate the amount of rent that might be due appellant.” The instructions are subject to this criticism, but, under the conceded facts, the error must be held to be harmless. Plaintiff received and the verdict permitted him to retain the payment of $200 made by defendant when the contract was entered into. His own witnesses admit that the crop was seriously damaged on all but twenty or twenty-five acres of the land and that it was totally destroyed on at least half of the acreage. Under the views expressed, plaintiff was entitled to an allowance of five dollars per acre as rental for the uninjured portion of the land. After adding to
We find no substantial error in the record and the judgment is affirmed.