Weltmer v. Mathis

349 P.2d 877, 186 Kan. 327, 1960 Kan. LEXIS 268

• Court: Supreme Court of Kansas
• Decided: March 5, 1960
• Docket: 41,693
• Status: Published

Opinions

The opinion of the court was delivered by

Jackson, J.:

This was a suit in equity to determine the rights ■of the parties growing out of the dissolution of the relationship of landlord and tenant created by a written contract. This is the 'second appearance of the suit before this court. In Weltmer v. Mathis, 182 Kan. 70, 319 P. 2d 165, this court held that the tenants’ second amended petition was sufficient as against a demurrer filed by the landlords.

As just indicated the tenants originally brought the suit against the landlords. We shall hereinafter refer to the parties as plaintiffs and defendants. After the return of the suit to the district court, the defendants filed an answer, the plaintiffs a reply and the parties proceeded to trial before the court. The trial court made extensive ■ findings of fact and conclusions of law, and decreed that the defendants were indebted to the plaintiffs in the sum of $2,863.22, and divided the costs of the suit between the parties. The defendants have appealed and the plaintiffs have cross-appealed.

We believe that the findings and conclusions of the trial court will-not only give a condensed story of the facts in this case, but will be useful in the discussion of the contentions of the parties. The court’s findings and conclusions were as follows:

“Findings of Fact.

“The Court finds:

"T. That this is an action to recover for the alleged wrongs arising out of a relationship in the nature of landlord and tenant involving a written contract.

“2. That plaintiffs are husband and wife, and defendants are husband and wife.

“3. That defendants were the owners of the real estate described in plaintiff’s, petition, and a herd of registered polled hereford cattle, all increase of said livestock, hay, grain and feed, and that plaintiffs did not own any livestock, hay, grain, or feed.

“4. That the parties, plaintiffs and defendants, voluntarily signed the written contract herein, admitted into evidence and marked ‘Plaintiffs’ Exhibit I’;'that said contract was entered into by the parties in good faith, and that said parties intended to comply with its provisions.

. . “5. That on or about March 1, 1954, plaintiffs moved on to said farm where they occupied the improvements, and entered upon the discharge of their duties.

“6. That from March 1, 1954, through February 28, 1955, plaintiffs continued on the farm as tenants under the terms and conditions of said contract, .and that at the end of that year, on or about March 1, 1955, a satisfactory settlement was made and had by and between the parties.

“7. That in July and August of 1955, plaintiffs became dissatisfied with certain operations on the farm, and that the parties disagreed on whether or not said farm was overstocked with cattle and the question of selling certain-cattle, and further questions as to whether or not there was sufficient feed and: facilities on said farm to carry said cattle through the winter.

“8. As a result of said dissatisfaction of plaintiffs and disagreement between the parties, plaintiffs did certain work including plowing of said farm,: but plaintiffs did not do certain other work which was to be done in the-farming operations.

“9. In August of 1955, plaintiffs made known to defendants that they desired to terminate the relationship and contract as of March 1, 1956.

“10. During the summer and fall of 1955, four cows and one bull from-said registered polled hereford herd, the aggregate value of $1900.00, died on said farm, and that two sows owned by defendants, of the value of $90.00, were found dead on said farm from poisoning; that during the summer of 1955, some of defendants’ registered cows were exposed to neighbor’s grade-bulls, and dropped calves of less value than registered calves; that there was extensive and varied disagreements between the parties concerning these losses.

“11. That on or about October 15, 1955, Weltmer submitted to Mathis a statement for $688.75 for services rendered on the Mathis farm, which said services plaintiffs were obligated, under the landlord and tenant, relationship;' and said written contract, to perform; that this is the demand which provides - the basis for plaintiffs’ second cause of action.

“12. That on or about October 31, 1955, plaintiffs, through their attorneys,' demanded $725.00 from defendants for services rendered by plaintiffs upori' said farm, which said services plaintiffs were obligated to perform under their relationship and contract.

“13. That during the early part of November 1955, Mathis instructed' Weltmer to deliver twenty-three fat hogs to the market of the Coffeyville,: Livestock Commission Company, at Coffeyville, Kansas; that said defendant Mathis was by the terms of the contract and the existing relationship, the' depository for sums of income from said farm; that on or about November 5, 1955, Weltmer marketed said hogs, and caused said check issued in payment in the sum of $751.94, to be made payable to Harold Weltmer; that further' differences arose between the parties concerning this transaction,' whereupon payment of said check was stopped; that the proceeds of said sale of hogs,' having been paid to the Clerk of the Court, the former holder of said funds is discharged upon said payment being made to the Clerk; that' defendants' committed no wrongful act in their dealing with the plaintiffs relative to the1 sale of said hogs which would provide a legal basis for punitive damages, and1 had no intention of harassing or embarrassing or oppressing the plaintiffs, and that said defendants were free from malice; that if plaintiff Weltmer was' embarrassed or humiliated, as a result of this instance, such arose from the differences and disagreements of the parties.

“14. During the latter half of 1955, up to on or about the. 2nd day of' December 1955, the parties attempted to negotiate settlement, of their' differences, although said attempted settlements were not in compliance with the provisions of the contract, these negotiations were unsuccessful and resulted in no meeting of the minds, and said attempts ended in failure to effect a satisfactory settlement to all parties.

“15. That the defendants, on or about November 15, 1955, served written notice on plaintiffs terminating said contract thirty days thereafter; that the parties, plaintiffs and defendants, failed and neglected to abide by and comply with all of the terms of said contract; that during the first half of December, 1955, plaintiffs vacated and moved from said farm; that said defendants then employed other persons as tenants on said farm.

“16. That the farming operations on said farm, from March 1, 1955, to March 1, 1956, resulted in a net profit on said farm of $7,780.59; that plaintiffs’ share, as tenants, was one-half thereof, or $8,890.29 and housing and other benefits for said year; that there appears from the evidence the sum of $1,779.01 income from said farm unaccounted for by plaintiffs; that within said amount is included the item for the sale, on or about November 5, 1955, of hogs in an amount of $751.94.

“Conclusions of Law.

The Court concludes, as a matter of law:

“1. That defendants were and are the owners of the real estate, improvements, livestock, polled hereford cattle, hogs, increase therefrom, all hay, grain and feed produced and used on said farm.

“2. That the written contract herein involved, marked ‘Exhibit I’ was made and entered into by and between the parties in good faith freely and voluntarily; that the parties did not at all times during the year of March 1, 1955, to March 1, 1956, abide by all the provisions of said contract.

“3. That the parties, as landlord and tenant, operated under said contract from March 1, 1954, to March 1, 1955, at about which last date an annual satisfactory settlement was made by and between the parties.

“4. That on March 1, 1955, the parties freely and voluntarily continued their relationship as landlord and tenant in connection with said contract from March 1, 1955, forward.

“5. That when differences arose between the parties, in the summer and fall of 1955, the attempts at settlement, compromise, or agreement of the differences of the parties resulted in failure, and no settlement between the parties.

“6. That the statements and conduct of the parties, relative to the sale of hogs on or about November 5, 1955, were made and done in good faith, were free from malice or coercion, but that said incident was the result of misunderstanding and differences between the parties.

“7. That plaintiffs have failed to meet the burden of proof upon any cause of action for punitive damages, and that Judgment thereon is granted in favor of defendants and against plaintiffs.

“8. That due to the differences and disagreements arising during the summer and fall of 1955, each of said parties were prejudiced, and as a result lost certain benefits belonging to them in the relationship of landlord and tenant under the contract.

“9. That plaintiffs’ second cause of action is based upon the demand for payment for the performance of plowing and other work and labor upon said farm, which plaintiffs were obligated to perform, and that plaintiffs have failed to meet the burden of proving their second cause of action, and that judgment is granted in favor of defendants and against the plaintiffs, on plaintiffs’ second cause of action.

“10. That defendants have made a full and accurate account of all moneys coming into their hands and the net earnings of said farm during the year March 1, 1955, to March 1, 1956, relating to the farming operations, and in accordance with this judgment, defendants’ accounting is approved.

“11. That the sum of $751.94 having been paid to the Clerk of this Court, said former holder of said fund is discharged; that said sum of money be and become a part of this judgment and be disbursed by the Clerk of this Court in accordance with the Court’s judgment.

“12. That the defendants are indebted to plaintiffs in the sum of $2,863.22, and that said plaintiffs have and take judgment against defendants, and each of them, for said sum; that each of said parties pay one-half of the costs of the action.

“13. That judgment should be, and it is rendered herein, in accordance with the foregoing findings of fact and conclusions of law.

“Signed and dated at Parsons, Kansas, this 14th day of April, 1959.”

Although able counsel for both sides strenuously and meticulously argue various alleged errors in the above findings and conclusions, we are compelled to observe that after considering the entire record it would appear the trial court has made a rather equitable and satisfactory decision as to the rights of the parties. It will be of no lasting worth to discuss each of the specifications of the appeal and cross-appeal and we shall confine this opinion to the ultimate contentions of both parties.

One of the chief objections raised by defendants is that the trial court refused to give defendants credit or charge plaintiffs with the sum of $2,124.38 shown by defendants’ records to have been expended by defendants for farm work between the time plaintiffs vacated the land in compliance with the defendants’ notice to move and March 1, 1956. It is quite true that part X of the written contract provided that defendants might give notice to the plaintiffs and cause them to move in the event they should deem themselves “insecure,” and further that “first parties (defendants) may enter and take possession of said real estate, personal property and livestock, employ additional help and charge any necessary expense incident to operation of the farm until the first day of March following the date of said termination to second parties and deduct the total amount of said expense from any sum due and owing to second parties on said March first.” But on its face, such provision is rather unequal and overreaching. No benefit whatever would be realized by plaintiffs for such work, and the term “insecure” as used in a farm contract may well be considered somewhat nebulous.

Moreover, there may have been other considerations which influenced the judge sitting as a chancellor in equity. As found by the court in finding No. 14, there was an attempt made by the parties under the urging of counsel representing both sides to settle their differences. This attempt at settlement did not materialize after plaintiffs had spent considerable time in hauling cattle back and forth to be weighed. There was evidence from which the court might conclude that defendants did not endeavor to make a settlement. On the whole of the matter, we can not say that in equity the court erred in refusing to apply the penalizing provisions of the above contract to its fullest extent.

Defendants argue concerning the application made of the sum of $751.94 derived from the sale of hogs and for which sum a check made to Weltmer was not paid by the bank under directions from Mathis. This amount had been paid into court by the stockyards firm which purchased the hogs, but was charged to plaintiffs in the figure of $1,779.01 (see finding No. 16, supra). The court quite rightly found that the money never received by plaintiffs should be subtracted from the amount charged against plaintiffs. In its final decree, as evidenced by the journal entry, the court ordered this sum of $751.94 held by the clerk of the court to be divided between the parties since it represented part of the profit for the year. The amount received by plaintiffs was ordered to be credited upon the judgment received by them. We fail to see any error in this manner of accounting.

As to the objections of plaintiffs on the cross-appeal, they claim that the court should have allowed them to recover for the plowing done by them in the fall of 1955 (see findings Nos. 11 and 12, supra). It is true that plaintiffs had given notice that they would not occupy the farm for the next year, and so would not receive benefit from the crops raised thereon, but the contract was still in force under which they had entered, and it would seem they had agreed to perform such work without extra pay. Therefore, we do not believe that it has been made to appear that the court erred in denying plaintiffs extra compensation for this work.

Some complaint is made by plaintiffs that the court failed to award punitive damages because defendants stopped payment on the hog check (finding 13, supra). There is practically no evidence of malice on the part of defendants, and the court was justified in refusing this claim. Likewise, the court would seem empowered in equity to settle the rights and cross claims of the parties and settle their accounts without assessing interest on the net amount found due. The court would seem to have decided that neither side was entirely without blame and divided the costs of the suit.

In Stephens v. Farwell, 155 Kan. 491, at p. 494, 126 P. 2d 489, this court speaking through Mr. Justice Thiele said:

“It is apparent that plaintiff sought the aid of a court of equity to have determined his right in the premises. The suit is somewhat out of the ordinary, but it is of that class where the court has power to apply settled rules to unusual conditions and to do equity. (Marquez v. Cave, 134 Kan. 374, 5P. 2d 1081; Stady v. The Texas Company, 150 Kan. 420, syl. ¶ 5, 94 P. 2d 322.)”

This court now finds that there was no reversible error committed by the trial court in its settlement below and that its decision both as to the appeal and cross-appeal should be affirmed. It is so ordered.