Tollefson v. Tollefson

171 Wis. 149 | Wis. | 1920

Eschweiler, J.

Certain of the items in the accounts of the parties were either conceded upon the trial or are not questioned on this appeal and need no attention. The plaintiff asserted that there was an agreement between the two that for whatever permanent improvements he made upon the premises while, in possession thereof the defendant would pay. The defendant denied any such agreement, but the referee found that there was such made; and there is testimony which will support such a finding and it must therefore stand.

The defendant questions the allowance' by the referee of $4.50 for certain cordwood which had been cut and piled by plaintiff, left on the farm by him, and turned over to the purchaser; an item of clover-seed chaff amounting to $50, and a further one for silage amounting to $15, also belonging to plaintiff and at defendant’s request left on the farm and turned over to the purchaser. Although there was no express promise made by defendant to pay plaintiff for these articles as there had been for other articles of personal property also turned over to the purchaser and not questioned here, we are nevertheless satisfied from the testimony that it was sufficient to warrant the allowance of these three items to the plaintiff, inasmuch as they were given at defendant’s express request to the purchaser and defendant received the benefit therefrom in his sale.

As to the questioned items for work done by plaintiff on the approach to the bain as well as for cementing its floor, these allowances are also supported by the evidence and cannot be set aside.

While in possession the plaintiff spent five days for which he charged and wa's allowed $2 per day for removing the mustard from the farm. There was no agreement or mention of this matter between the two parties. Under sec. 1480, Stats., the duty is placed upon the person occupying or controlling, equally with the person owning, lands upon which are growing thistle and mustard, to destroy or cut the same. The statutory obligation, therefore, was as absolute upon the plaintiff to do that work, he then occupying and controlling the land, as upon the owner. There being no agreement between the parties that the defendant should pay the plaintiff for this item of $10, it must be disallowed.

When therplaintiff went into possession he found that the chickens which had been kept there were permitted to roam and roost at will in the barn. He preferred to have'them outside of that structure, and at an expense of $16.50 for material and labor érected a small structure as a chicken house on the outside of the barn. He was also not satisfied with the condition of certain bins in the barn which had been used for the storing of grain, and at an expense of $16 for material and labor he changed those and was allowed by the referee for these two items. From the testimony we are of the opinion that neither of these items was such as should properly be classed within the term “permanent improvements” for which the plaintiff shóuld be held liable. They were more matters of repairs or changes for the convenience or to satisfy the taste of the occupant and should therefore be disallowed. 14 Ruling Case Law, 16; Israel v. Israel, 30 Md. 120.

THe referee also allowed an item of $31 for the purchase price of and labor in sowing clover seed upon the farm. We do not think the plaintiff has satisfied the burden of proof that would be-upon him as to this item of showing that it was in the nature of such a permanent improvement as would be recognized,as properly allowable to him under the general agreement between the parties. If it were primarily for fertilizing purposes, the general rule seems to be that such is not in'the nature of the permanent improvement for which allowance in such cases should be made. 14 Ruling'Case Law, 16; 22 Cyc. 5.

The judgment for the plaintiff must therefore be decreased by the total of the three items, amounting to $73.50, that we have thus disallowed.

Apparently the formal admissions made in plaintiff’s pleadings as to his obligation to pay rent on the basis of $450 a year rather than $400, and admitting a liability of $346.30 as set forth in the statement of facts, were overlooked on the trial below, and the finding of a credit to defendant of $308.66 for such rent was based upon the testimony of plaintiff that the agreement was to pay rent on the basis of $400 per year rather than $450. The admissions thus made in the pleadings, in the absence of some showing that would justify disregarding them, and none such appear herein, should bincl the plaintiff and dispose of the matter. The defendant therefore should be entitled to the difference of $37.64 between the amount allowed by the referee and the $346.30 admitted by the plaintiff.

The plaintiff’s judgment therefore should be reduced by the total of these two items of $73.50 and $37.64, or $111.14, which, deducted from the $394.46, the balance found due the plaintiff, would leave the correct amount thereof $283.32, and to 'that extent the judgment must be modified.

Defendant insists that he made a lawful tender to the plaintiff before the action was commenced of an amount more than that now found due from him and that it. was rejected by plaintiff. The tender, however, was not in such form as to make it a compliance with the statute concerning the same or the rules of court, and it therefore does not become material in the disposition of this case. Frank v. Frost, 170 Wis. 353, 174 N. W. 911.

By the Court. — Judgment modified by reducing the amount of damages from $399.46 to $283.32, and as so modified it is affirmed. Appellant to have costs on the appeal.