91 Kan. 582 | Kan. | 1914
The opinion of the court was delivered by
Plaintiff sued in ejectment, and from an order sustaining a demurrer to her testimony she appeals. The plaintiff’s father, H. C. Vawter, owned the land in controversy and leased it to the principal defendant’s father for a term of years expiring March 1, 1910, at an annual rental of $140. Before the lease expired the lessee died and the son became tenant for the remainder of the term. In the summer of 1909 Mr. Vawter was at the place and discussed with the defendant, Schriver, the further leasing to him of the land. The latter desired a five-year term and had written on January 27,1908, that he would have to sublet and would be obliged to have it for a term of five years at least. A letter from Mr. Vawter during the same month contained the statement that he would wait a while as he was getting old and did not know whether he would live for five years, and at any rate would wait until the lease was out. It seems that the land was deeded to the plaintiff in 1909 and the deed delivered to her about Jaunary 5, 1911. January 23, 1912, she notified the tenant to quit March 1 of that year. Upon the trial the controversy appeared to be whether defendant Schriver was holding under a three-year lease or simply holding over from year to year. Mr. Vawter testified that prior to conveying the land to his daughter he met P. D. Schriver on the farm and leased the premises to him for a term of one year
“Mr. P. D. Schriver,
'Sir : Your letter received to-day in regard to renting of my land. When I was out there I said you could keep it for $175.00 a year, payable December 1. There was nothing said about five years, and if there had I could have told you I did not expect to keep the land. I have deeded the land away and don’t own it now; and you are so long in replying to me I wrote out there and about renting. I did not know what you were going to do. I said you had the place until the first of March, and time was getting short and I was to look after it for the present and I thought I would give you the preference if you would do as well by me as any one, so we agreed on three years’ lease, payable Decern*585 ber first each year and keep up the fences and not plow up any of the wild grass, and that is the reason I wanted to know as soon as possible, so I make this request, as I am waiting on you for this.
Yours respectfully, H. C. Vawter.”
There was other testimony to the effect that the defendant had claimed to be holding under a three-year lease, and at another time stated that his lease expired in 1912. On redirect examination Mr. Vawter testified that Mr. Schriver never, to his knowledge, accepted a three-year lease.
It is contended that the letter of February 13, 1911, amounted to a note or memorandum, within the statute of frauds, of a three-year lease, and controlled regardless of the other testimony touching the term. It must be remembered, however, that when this was written Mr. Vawter did not own the land, and as no writing of the owner was shown, authorizing him in any way, the letter would not be sufficient under the statute of frauds. (Gen. Stat. 1909, §§ 3837, 3838.) It would seem that it was at one time claimed by Mr. Schriver that he had a five-year lease, at another that he had a three-year lease, and at another that he was simply holding over until 1912, and the discrepancy between Mr. Vawter’s statements as a witness and his statement in the letter was equally wide. These discrepancies raised a question of fact for the jury to determine, and the trial court was not authorized to weigh the evidence and reconcile the conflicts therein, and therefore erred in sustaining the demurrer. The rule announced in Acker v. Norman, 72 Kan. 586, 84 Pac. 531, applies.
It is argued that as defendant Schriver had taken possession and made expenditures for the purpose of placing the land in condition for use under the contemplated lease, this was a part performance taking the case out of the statute of frauds regardless of any written memorandum. If the existence of a valid lease
, Some of the letters were offered in evidence after the plaintiff had obtained leave to introduce further testimony in support of her application to reopen the case, after the demurrer to the evidence had been sustained. But having been then received, they appealed at least to the discretion of the court and should therefore be considered and given their proper effect. But whether considered with the evidence already introduced, or whether the latter be viewed alone, the case was left in the condition of presenting a conflict of evidence, which conflict, although partially between different portions of a party’s own testimony, was still one for the jury, and not for the court, to reconcile or determine.
The judgment is therefore reversed and the cause remanded for further proceedings.
