24 Colo. App. 209 | Colo. Ct. App. | 1913
delivered the opinion of the court.
Action in the Denver district court by plaintiff (plaintiff in error) against defendant, to recover judgment for moneys laid out an<j expended for defendant, and for the value of goods, wares and merchandise received by him for plaintiff. Defendant pleaded a counterclaim and recovered judgment thereon, from which this appeal is prosecuted.
The pleadings show that' defendant was in possession of certain farm premises described in the complaint, under a written lease from plaintiff, for one year, beginning December 1, 1905. The lease contains many covenants and agreements, some of’which are as follows:
“And lessee shall pay as rent one-half (y2) of all hay, grain and other produce raised on said ranch, shall do all necessary work to raise and harvest said crops, and furnish all tools, seed and machinery to do the work; and keep the small ditches in order, feed all teams at his own expense, and not use the said Wilmore’s horses for any other purpose than actual work on the ranch. The hay shall, be divided in the stack; the grain shall be divided as soon as it is threshed; and all grain belonging to the party of the first part shall be put in the granary or loaded on the car, and the party of the first part shall pay for the loading of his half; the apples to be sold by the party and the second part and the money be equally divided, and all other produce or income from said ranch shall be equally divided. Settlements shall be made in dividing all moneys immediately at the time the same .is paid for. The party of the first part shall furnish three (3) horses, all the tools, machinery, wagons and harness now on the place; pay for seventy (70) inches*211 of water; pay one-half (%) the threshing bill and furnish one-half (%) of the seed and one-half (%) of the boxes or barrels for the apples, it being' understood that nothing shall be sold off from the place before division without the mutual consent of the parties hereto, and settlements shall be made in dividing all money immediately at the time the same is paid for any hay, grain or produce when the same is sold off from the place, it being understood that ■ the said Wilmore shall at all times have general supervision of the place as to the course to be pursued in general.”
Defendant’s answer contained a counter-claim to the effect that plaintiff was indebted to him in the sum of $59.60 for the care and lceep of a mare named “Maud,” from March 1 to June 10, and from September 1 to October 17, 1906, at a reasonable charge, as claimed, of 40 cents a day; for the sum of $220 for moneys expended' in hiring a team to work on the ranch, made necessary by plaintiff’s failure to furnish him with three horses to do such work; also for several small sums aggregating $9.53, making-a total counter-claim of $289.13.
Defendant’s evidence shows that he had been in possession of the ranch from December 1,1904, to December 1, 1905, under a written lease substantially identical with the one now before us; that, two horses, called “Bob” and “Barney,” and the mare “Maud,” were on the ranch at the time both leases were signed, and remained there throughout 1904, 1905 and 1906, except as to “Barney,”-who died in 1906; that-Wilmore had four other horses on the place besides “Bob” and “Maud”- during 1906, up to June 10th, at which time one team was taken away to haul lumber and never returned, leaving on the ranch two good horses that could work, besides “Bob” and “Maud”; that “Bob” and “Maud” worked there during the summer 1905, and some of the
The direct and cross-examination of defendant conclusively shows, by his admissions, that he owed plaintiff $161.21, which he sought to overcome by his counterclaim, and also that plaintiff furnished two serviceable horses during the term of the lease; hence, under defendant’s own showing, plaintiff could not have been in default as to the third horse for more than $110 for the 110 days. The remaining $110 of the $220, subtracted from the counter-claim of $289.13, would leave it $179.13. This computation is based entirely upon defendant’s evidence, ignoring that of plaintiff altogether, which shows an indebtedness from defendant to him of approximately $305. The item of $59.60 for feeding “Maud” is included in the counter-claim of $179.13. Under the terms of the lease defendant was precluded from asserting this item as a claim against plaintiff. The lease reads that the lessee (defendant) shall “feed all teams at his own expense.” There is no ambiguity about this provision. The animal “Maud” had been used on the ranch as a farm and team horse during the entire term of the first lease, and was there at the time the present lease went into effect. It must have been within the contemplation of the parties that she would remain there for the full term of the'new lease and be used as a team horse, hence defendant contracted to feed her at his own expense. To hold otherwise would violate the rule, that the terms and conditions of a written contract cannot be varied by parol. This covenant is not affected by another clause of the lease, viz., “The party of the first part shall furnish three (3) horses, all the tools, machinery, wagons and harness now on the place,” for whether the phrase ‘ ‘ shall furnish three horses ’ ’ refers to horses
We think another error occurred during the course of the trial which is fatal to the judgment, viz.: Considerable testimony was permitted to go to the jury, under strenuous objections of plaintiff, concerning the alleged sale of a certain team by plaintiff. Defendant claimed this team belonged to him, and that he placed it in the
Other errors are discussed in the briefs, which we do not deem necessary to notice in this opinion, owing to the conclusions we have already expressed.
We have not attempted to construe that clause in the lease above quoted, relating to the furnishing of three horses, tools, etc. Even if that construction of the clause contended for by defendant be adopted, it would not change the result we have reached.
Both parties to this appeal appear to be men of modest means, and it is to be regretted on their account as well as that of the state, that this matter could not have been settled after the trial below. The voluminous record and printed matter indicates an expense to both of many times the amount involved.
Upon a consideration of the entire record, we think the verdict was so manifestly against the weight of evi
Reversed and Remanded.