74 Ind. App. 264 | Ind. Ct. App. | 1920
Action by appellee against appellant for damages growing out of an alleged conversion.
It is averred in substance in the complaint that on August 24, 1916, appellee leased a certain tract of land in Pulaski county, Indiana, for a period of two years from .the first day of March, 1917. At said time appellant was the tenant of an adjoining 110 acres belonging to the same landlord. At said time there was an agreement between appellee and appellant whereby the hay crop on said lands should be alternated between the lands of appellee and the lands of appellant, the hay and seed to be grown and harvested one year on the lands of the appellee and the following year on the lands occupied by and farmed by appellant, and that the hay and seed grown and harvested on the one farm should be divided on the basis of one-half to the landlord, one-quarter to the appellee, and one-quarter to the appellant. Pursuant to the agreement, the hay and seed from appellee’s land in 1917 was divided between the landlord, appellee and appellant. In 1918 the crop of hay and seed was grown on the land occupied by the appellant, the hay crop being divided between appellee and appellant pursuant to the agreement; but thereafter appellant hulled the hayseed from the field on his land, and refused to divide the same with appellee. Appellee offered to assist in cutting and hulling said seed at the time for cutting and hulling the same, offered and requested that he be permitted to assist in such work, but the appellant refused to so permit him.
There was a demurrer to this complaint, which was overruled, after which appellant answered in three paragraphs. Only the first is presented, it being to the effect that the alleged verbal contract as set out in appellee’s complaint, in so far as it relates to the part of the contract and agreement that was to be performed in the season and fall of the year 1918, is barred by the fifth clause of the Statute of Frauds and Perjuries (§7462 Burns 1914, §4904' R. S. 1881), for the reason that by the terms of said agreement it was not, and could not have been performed by the parties within one year from the time of making or entering into it, as disclosed by the complaint, and that no part of the alleged contract that was to be performed in the year 1918, had been performed by either party within the year from the time of the making thereof.
A demurrer by appellee to this answer was sustained, after which the cause was submitted to a jury for trial, which returned a verdict for appellee in the sum of $350.
After appellant’s motion for a new trial was overruled, this appeal.
The only questions presented for our consideration are: (1) The alleged error in overruling appellant’s demurrer to appellee’s complaint; (2) the sustaining of appellee’s demurrer to appellant’s answer; and (3) overruling the motion for a new trial.
As the allegations of appellant’s first paragraph of answer set forth above do not constitute a good defense to the complaint under the rule just stated, there was no error in sustaining the appellee’s demurrer thereto.
The only question presented in the motion for a new trial is the alleged error in giving to the jury certain instructions. There was no reversible error in giving them, and nothing can be gained by discussing them. It is clear that a right result was reached.
The judgment is affirmed.
