104 N.W. 848 | N.D. | 1905
This is an appeal by defendant from a judgment for plaintiff, entered' pursuant -to the verdict, in an action to recover for the use and occupation of about 120 acres of farming land in Eddy county during -the farming seasons of 1901 and 1902.
The substance of the allegations of the complaint were as follows : First. That the land in question was owned by Joseph Fugina an-d Marcus Fugina from the 1st -day -of January, 1886, until the 1st day of April, 1901. Second. That some time between the years 1886 and 189-5 the defendant and his father were permitted to ent-er into the possession of said premises and use the same under an agreement whereby they were to have the use of said- land •upon th-e condition that they pay -th-e -taxes the-re-on; that the defendant and his father took possession -of the premises under said agreement, and occupied the -same thereunder until on or about the 1st day of February, 1901, when the father of this defendant died. Third. That about that time the owners- of the land -discovered that the defendant and his. father had failed to fulfill the agreement under which they occupied the premises by failing to-pay the taxes as agreed, and that this defendant was attempting ibo -secure a tax title to the land; that the owners thereupon paid the taxes and demanded possession of the premises from th-e defendant ; that the defendant thereupon claimed to be -the owner of
To such complaint the defendant made 'answer, the material parts of which are as follows: Admits the ownership of the land by Joseph and Marcus Fugina, as alleged in the complaint, prior to April 1, 1901, and a purchase thereof by plaintiff at the time mentioned in the complaint, but alleges that whatever interest plaintiff acquired under said purchase he acquired with full notice and subject to the agreement existing between the defendant and Joseph and Marcu's Fugina, which entitled the defendant to the use and possession of the land during the years 1901 and 1902. Defendant admits that he occupied and cropped the lands during the years 1901 and 1902, but denies that such possession was wrongful, and den-ie-s that the rent and use for said years is worth the sum of $250 a year. He admits “that between the years 1886 and 1895 the said Joseph Fugina and Marcus Fugina entered into an agreement with this defendant and his 'father, which agreement in substance and effect provided that defendant and his father were to -have the use of said land, but denies that in consideration of said use defendant or his father were to pay the taxes on said land. He admits that be and his father entered into possession of said
The appellant contends, 'and most of the assignments of error are based on that contention, that the complaint shows that the defendant was in possession as a tenant holding 'over from year to year under the original lease, and was ’accordingly liable only for the agreed annual rental, to wit, the amount of the annual taxes, and no more. We do not so; construe the complaint. We think it states, though with unnecessary prolixity, a good cause of action for the recovery of the value of the use and occupation of the premises, grounded on defendant’s wrongful occupation during the farming seasons of 1901 and 1902. The complaint shows that the relation of landlord and tenant existed between the former owners of the land and this defendant and his father until the father’s death. It was then discovered that this defendant was in .possession, claiming title in himself, and denying his landlord’s title. The defendant’s denial of his landlord^ title was in law a repudiation and termination' of the tenancy, dispensing with notice to quit, and the landlord might treat it as a disseisin, as has been done by commencing this suit to recover, not t'he agreed rent, but the value of the use and occupation. Wood on Landlord and Tenant, p. 498, and following cases cited in note on page 492 of same work: Hall v. Dewey, 10 Vt. 593 ; Currier v. Earl, 13 Me. 216; Tillotson v. Doe,
The complaint would have been in better form, had- it simply alleged the ultimate facts giving the right to recover, instead of narrating the circumstances which establish-those facts. The evidence established, without material dispute, that the facts were substantially as narrated in the complaint, except in one particular. The evidence showed the 'former owners of the land leased it, as stated in the complaint, not to defendant and his father, but to the father alone, although the father and son apparently jointly farmed it. The variance, however, was not material. It was not a departure from the issues in any substantial particular, and defendant was in no way prejudiced thereby. An amendment was therefore unnecessary. Halloran v. Holmes (N. D.) 101 N. W. 310.
Before resting his case the plaintiff had offered no proof to show that the defendant had asserted title in himself, as alleged in the complaint. This fact, however, was proved by the testimony of the defendant himself upon cross-examination, after being called as a witness in his own behalf. The cross examination by which this testimony was elicited had no relation to the matters concerning which the defendant had testified on his direct examination, and was permitted over the objection of defendant’s counsel that it was irrelevant and immaterial and improper cross-examination. It was clearly relevant and material, because it tended to prove that the defendant had, by denying his landlord's title, terminated by his own act any tenancy which he might otherwise be in a position to claim. The objection that it was improper cross-examination was one addressed to the discretion of the trial court, and the ruling of that court will not be disturbed except in case of abuse. State v. Bunker, 7 S. D. 639, 65 N. W. 33; Rea v. Missouri, 17 Wall. 532, 21 L. Ed. 707. There was no abuse of discretion. The witness being cross-examined was the defendant himself. This fact distinguishes this case from that of Kaeppler v. Bank, 8 N. D. 406, 79 N. W. 869. The chief reason for the rule that the cross-examination should be confined to the matters referred to in the direct examination is that the party who calls a witness is to a certain extent deemed a sponsor for the truthfulness of his testimony. To permit such a witness to be cross-examined to prove facts foreign to the matters to which his direct examination extended would therefore be a manifest injustice to the party calling him. This reason for the rule has no application where the interested party is
None of the errors alleged by defendant were prejudicial, because, as we view the pleadings and proof, the undisputed evidence established plaintiff’s right to recover the fair value of the use and occupation of the premises during the time in question; and the only question for the jury to decide was what that value was. The trial court was right in so holding. The sufficiency and competency of the evidence to support the jury’s finding as to value are not questioned'.
The judgment is affirmed.
