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60 to 90 feet from the crossing, when he 2 Pac. 736, and Fagundes v. R. R. Co., 79 Cal. suddenly turned his horses upon the track, 97, 21 Pac. 437, 3 L. R. A. 824. In Estate of with the result that a collision occurred in Morey, 147 Cal. 495, 82 Pac. 57, the court in which said Peter Bohn was killed. His ad discussing a similar question says: "With ministrator sues for damages. At the close regard to the granting of a motion for nonof plaintiff's evidence, defendant moved for suit made at the close of the evidence for a nonsuit, which was denied. Defendant plaintiff and defendant, the rule seems to be then introduced its evidence and renewed its well established that the trial court has dismotion for a nonsuit, which motion the court cretion, and that it is not error to grant the granted, and judgment was entered for de motion where, upon all the evidence, it is fendant. Plaintiff's motion for a new trial clear that if a jury should bring in a verwas denied, and he appeals from that order. dict against the defendant it would be the

The error assigned is the order granting duty of the court to set it aside and order a the motion for nonsuit. It is not claimed new trial.” To the same effect is Estate of that the deceased was not guilty of gross Dole, 147 Cal. 188, 81 Pac. 534. negligence, as he clearly was, but it is con Nor is the practice confined to this state. tended that the motorneer in charge of said Quoting from Cooper v. Waldron, 50 Me. 81: car saw the deceased upon the track in time “When in any case it is clear that upon the to have stopped the car, and by the exercise evidence verdict for the plaintiff cannot of ordinary care he could have stopped the stand, that in the end judgment must be rencar after he saw the danger to which said | dered for the defendant, what good reason deceased was exposed by reason of his posi can be assigned for submitting the case to the tion. Appellant contends that the action of jury? If their verdict is right, nothing is the court in granting the motion was in vio gained; and, if it should happen to be wrong, lation of section 2101, Code Civ. Proc., and it must be set aside. To withhold a case from section 7, art. 1, of the Constitution of this the jury is no greater interference than to state, which provides: “The right of trial by set aside their verdict. To set aside their jury shall be secured to all, and remain in verdict impliedly impeaches either their inviolate." Like constitutional provisions are telligence or their integrity, and tends to contained in the organic law of every state lessen public confidence in the usefulness of in the Union; yet, notwithstanding this fact, the institution. * * * If the presiding the courts of last resort recognize the right judge is of the opinion that the facts adof the trial judge in proper cases to direct mitted or clearly established are not sufa verdict in favor of the plaintiff, or to ficient to prove a want of probable cause, he grant a nonsuit. The practice has from the must either nonsuit the plaintiff or direct earliest date in the history of this state re the jury to find a verdict for the defendant. ceived judicial sanction. In Ringgold V. The better course is for the judge to nonsuit Haven, 1 Cal. 115, the court says: "If, the plaintiff, for it is idle to submit to the therefore, upon a given state of facts, a court jury a question that can be answered in would be obliged to set aside a verdict of only one way." And in Reed v. Inhabitants, the jury as against the evidence, we see no 8 Allen, 522, the court held: “Where the reason or propriety in submitting such facts whole evidence introduced by the plaintiff, it to them for their consideration. When their believed by the jury, is so insufficient to sup. determination will be a nullity, why compelport a verdict that the court would not perthem to deliberate? Such a course is neither mit one to stand, it is the duty of the court creditable to the law, nor complimentary to to instruct the jury, as a matter of law, that the jury." This language was cited with ap there is not sufficient evidence to warrant a proval in Mateer v. Brown, 1 Cal. 221, 52 verdict for plaintiff.” “Judges are no longer Am. Dec. 303; and again in Geary v. Sim required to submit a case to the jury merely mons, 39 Cal. 224, the court says: "A court because some evidence has been introduce:l is justified in granting defendant's motion by the party having the burden of proof, for nonsuit, after the evidence on both sides unless the evidence be of such a character has been heard, in a case where, if the mo as that it would warrant the jury to proceed tion had been denied and a verdict found for in finding a verdict in favor of the party plaintiff, it would have been set aside as not introducing such evidence." Byrd v. So. Exsupported by, but contrary to, the evidence.” press Co., 51 S. E. 851, 139 N. C. 273. “There In Fox y. Southern l'acific Co., 95 Cal. 234, is in every case a preliminary question, 30 Pac. 384, a second motion for nonsuit was which is one of law, namely, whether there made and granted after all the evidence was is any evidence upon which the jury could in. In reviewing this ruling the court says: properly find the verdict for the party on "Practically, therefore, the real question in whom the onus of proof lies. If there is the case at bar is whether or not the court not, the judge ought to withdraw the quesabused its discretion in holding that the tion from the jury and direct a nonsuit, if evidence was insufficient to support the ver the onus is on the plaintiff, or direct a verdict; and it is clear to us, from an examina dict for the plaintiff, if the onus is on the tion of the evidence, that this question must defendant." The above is the English rule be answered in the negative." To the same as expressed by Mr. Justice Willes in Rider effect is Vanderford. v. Foster, 65 Cal. 49, v. Wombell, L. R., 4 Es, 38, and the same

rule obtains in practically all of the states during the term of the lease, and that the lesof the Union.

sors take nothing by reason of their counter

claim, was sufficient to cover the issue. Measured by this rule, the question before

3. LANDLORD AND TENANT — ENJOYMENT OF us is one solely of an abuse of discretion by

PREMISES-PASTURAGE RIGHTS. the trial court; and upon the evidence as dis Where there was no provision in a lease closed by the record we are firmly convinced for years reserving to the lessors the right to

the pasturage, the lessees were entitled to it, un. there was no abuse of discretion on the part

der Civ. Code, $ 819, providing that a tenant of the court in making the order of which

for years, unless he is a wrongdoer or holding appellant complains. The evidence in sup over, may take the annual products of the soil. port of the allegation that the motorman operating the car could, by the exercise of

Appeal from Superior Court, Yuba County :

E. P. McDaniel, Judge. ordinary care, have stopped the car after he had become aware of the dangerous posi

Action by H. J. Carstenbrook and another tion occupied by deceased, is not only meager

against W. A. Wedderien and another. From but of a character entitling it to little, if any,

a judgment for plaintiffs and an order denyweight. Had the case been submitted to the

ing a new trial, defendants appeal. Affirmed. jury and a verdict for plaintiff followed, it W. H. Carlin and Waldo A. Johnson, for is clear that it would have been the duty of appellants. M. F. Brittan and J. E. Evert, the court to have set the same aside and for respondents. ordered a new trial. Under such conditions, , no good purpose could be subserved by sub HART, J. This action is brought by plainmitting the case to the jury. The same ob tiffs to recover the sum of $591, together with ject is accomplished by a shorter legal route interest thereon at the rate of 8 per cent. per in ordering a nonsuit. As said in Estate of annum, alleged to have been loaned and adMorey, supra, the practice is only justified in vanced to defendants under and by virtue of very clear cases, and where there is even an the terms of a certain written agreement of approach to a substantial conflict in the evi. lease entered into between the parties, involvdence the issue should be left with the jury. ing the leasing of certain lands to plaintiffs by The right of the court to set aside a ver- defendants. A jury was waived by the par. dict which is unwarranted by the evidence ties, and the case tried by the court. Plainis beyond question. We are unable to per tiffs were awarded judgment for the sum of ceive any constitutional distinction between $659.86, which includes the principal sum the exercise of such right and the right to sued for and interest in the sum of $68.86. order a nonsuit in a proper case at the close Defendants take this appeal from said judg. of the evidence.

ment and an order denying their motion for There was no abuse of discretion in grant a new trial. ing the motion for nonsuit, and the order By the terms of the said written agreement denying a new trial is affirmed.

or lease, which was executed by the parties

on the 21st day of January, 1904, the defendWe concur: ALLEN, P. J.; TAGGART, J. ants leased to the plaintiffs certain real prop

erty, situated in Yuba county; said lease to

take effect on and from the said date of its (5 Cal. A. 603)

execution and to continue in force until and CARSTENBROOK et al. v. WEDDERIEN

including the 28th day of September, 1904. et al. (Civ. 293.)

It was provided in the lease that the plaintiffs (Court of Appeal, Third District, California.

should have the option, upon the expiration of May 27, 1907.)

the term thus expressly agreed upon, of ex1. LANDLORD AND TENANT-RENT-ACTIONS

tending the term of their lease of said lands TIME TO SUE.

for a further period of four years. The lease Under the terms of a farm lease, the les is made a part of the complaint and is set sors were to receive one-third of all crops grown and harvested by the lessees. The lessees, in

out in hæc verba in the findings, and so much addition to a sum paid upon the execution of

thereof as may be necessary to an underthe lease, were to advance on demand $54 per standing of the issues presented by the pleadmonth during the period of the lease, which was

ings reads as follows: to be repaid by the lessors at the time of harvest; the lessees having a lien upon the lessors'

"Upon the following terms and conditions, share of the crops for the amount. Before the to wit: Said second parties will at all proplast monthly advancement was due, a flood ren er times and seasons during the term of this dered the raising of a crop impossible. Held, that the lessees were not required to wait until

lease, and according to the terms of good husdemand and payment of the last monthly amount

bandry practiced in the neighborhood, crop before bringing an action against the lessors said lands and premises to grain and hay and for the advancements.

such other crops as they shall in their sound 2. TRIAL-FINDINGS-RESPONSIVENESS TO Is

discretion deem advisable; that they will SUE. In an action by lessees to recover from their

carefully plant, care for, protect and harvest lessors advancements of rent, an issue tender all of said crops without any expense to said ed by the lessors' counterclaim was that the first parties except for sacks as hereinafter lessees used the premises for pasturage purposes solely, and that the reasonable value of the pas

mentioned, and will deliver to said first parturage was $1,000. Held, that a finding that

ties, or their order, within a reasonable time the lessees were entitled to all the pasturage after said crops shall have been gathered and

harvested, subject to the lien for advance quantum valebat, for the sum of $1,000, alments made hereunder and to be inade here leged as the reasonable value of the use of under by said second parties to said first par the leased lands for the purposes of pasturties as hereinafter mentionel, at such place age, to which use, it is alleged, it was conas said first parties shall designate in the city verted by plaintiffs; said pasturage being, of Marysville, one-third of all of said crops it is claimed, the sole and exclusive property of grain, said first parties to furnish at their of defendants. It is insisted that the judgown expense sutficient sacks to contain their ment should be reversed for two reasons: rental or share of one-third of all crops of “(1) Because the demands sued upon were grain grown and harvested upon said lands not due when the action was commenced ; under the terms of this lease; and said sec (2) because the findings do not cover all the ond parties will further deliver to said first material issues raised by the pleadings." parties properly stacked on said premises The action was commenced on the Sth day one-third of all bay grown and cut upon said of August, 1901. A demurrer was sustained premises under the terms of this lease. to the original complaint, and thereafter anil

“Said second parties hereby covenant and on the 6th day of February, 1905, plaintiff agree to pay to said first parties, at the date filed an amended complaint, which (a deof the execution of this lease, the sum of two murrer thereto having been overruled) tenhundred and thirteen dollars ($213.00), and dered the issues of fact upon which the cause upon the request and demand of said first was tried. The court found from the eviparties the further sum of fifty-four dollars dence "that pursuant to the terms of said ($554.00) on the first day of each and every agreement said plaintiffs did, at the proper month commencing with the first day of Feb time in the year 1901, and in accordance with ruary, 1904, during the period of this lease, the terms of good husbandry as practiced in that is, up to and including the 28th day of the neighborhood in which said lands are September, 1901, and the further sum of situated, carefully crop and plant said lands fifty-four dollars ($51.00), on the like request and premises to grain and hay, and did careand demand of said first parties, on the first fully care for and protect said crops during day of each and first day of September, 1908, the said year 1904, and that thereafter and if said period or every month thereafter up during the said year of 1904, and before the to and including the term of said lease be time for harvesting the said crops, the whole continued and extended to September, 1908, of said crops were totally destroyed by an as hereinabove provided. Said sum of $213.00 act of God and without any fault or neglect and said sum of $54.00 to be paid monthly as of said plaintiffs, or either of them, and as herein specified, shall be deducted with inter a result thereof there were no crops or any est as herein specified, by said second parties, crop to harvest upon said lands and premises when paid, from the one-third share of said described in said agreement during said year first parties in the crops raised under the of 1901." The court was fully warranted in terms of this lease and shall bear interest | making this finding from the evidence refrom the date of their several payments at ceived. The plaintiffs testified that, having the rate of eight (8) per cent. per annum, and entered into the possession of the lands resaid sum with interest as aforesaid shall be ferred to in the lease between the 10th and and constitute a lien on said one-third por 15th of February, 1904, at once proceeded to tion of said crops reserved herein as and for plow the arable or tillable portions thereof, rental for said first parties, in favor of said preparatory to seeding and cultivating the second parties, until the same together with same in obedience to the covenants and coninterest as aforesaid be repaid by said first ditions of the lease. The property, or the parties to said second parties, and should the "ranch," as in common vernacular it is desigtotal of said advancements, together with in nated, embraces some 393 acres of land, of terest as aforesaid, in any season, exceed said which 205 acres are "farming lands, or lessors' (said first parties) share in the en lands adapted to and suitable for the cultivatire crops for said season, then in such event | tion of cereals. Approximately 140 acres of said first parties shall pay to said second par the land were plowed; the balance being too ties the excess thereof received by them from wet to undergo that process to any practical said second parties.

purpose. A short time thereafter heavy rains "It is further agreed by and between the came, the water in the Feather river, on parties hereto that said advancements made which the lands are situated, rose to such and to be made hereunder by said second par an extent as to overflow its banks, and the ties to said first parties, together with in flood waters inundated a large part of the terest as aforesaid, shall be repaid by said land; the same remaining thereon so that the first parties to said second parties at the land could not be utilized for farming purharvest of said crops, in gold coin of the poses for a long period of time. The plainUnited States of America."

tiff H. J. Carstenbrook testified: “Some time The complaint is verified. The answer ad in May I sent my teams there again and mits that the plaintiffs paid to the defendants summer-fallowed 85 acres, on the north side the sum of $591, but specifically denies all of the road, and also a piece on the south the other material averments of the com side that had been winter plowed. All told, plaini, and sets up a counterclaim upon a I replowed about 115 acres during that year

after I had entered into the lease. I madle that there grew upon the land after the watwo plowings that year on the place. After ter from the overflow of the river had disthe first plowing, I did not sow the piece on appeared "dog-fennel" and other weeds unfit the south side of the house, next to the levee, even for the purposes of pasturage; that, because I could not get on it, because of the while there was a small quantity of grass water on it. The other part I had just seed- growing on the land upon which sheep and ed to barley, when the water came up on it. other cattle could thrive for a very limited This was about 70 acres. There were about time, it was measurably insignificant, and 85 acres in the whole piece, but I did not in consequence, for purposes of hay, not seed 10 or 13 acres of it, because it was too worth its cutting. In fact, the testimony of

About 85 acres I plowed the second these witnesses was uniform upon the point time. The portion of the land north of the that a crop of hay could not have been cut house, about 85 acres, I seeded to barley from the land after the recession of the watwice, and the water came up and drowned ters of the overflow. From the conditions out both times. The water came up the sec existing and as thus briefly described, it was ond time about the 28th of March and re. manifestly impossible to have cultivated and mained over it fully three weeks, and proba advanced to a state of fruition any kind of a bly longer, and the ranch was not at any time crop upon the land, and therefore it irresisti. afterward in such condition that it could bly followed that the terms upon which the have been cropped." This witness also tes plaintiffs took possession thereof under the tified to having had 22 years' experience in lease could not be by them met and carried the business of farming in Sutter and Yuba out. These conditions, as the court found, and counties. He stated that after the water as the evidence conclusively demonstrates, had finally subsided and receded from the were not brought about through the fault or land there was nothing left "but a water the negligence or default of the plaintiffs, but hole," and that it was not possible under the were the consequences of the course of nature conditions then existing to cultivate a crop and resulting circumstances, to repel, overof any character; that there was no volunteer come, or control which is, of course, beyond crop in that year upon the 115 acres which the power of any known human agencies, were replowed and summer-fallowed; that except, perhaps, through efficient levee fortifithe vegetation on the land after the floods cations, constructed to guard against over: was not such as could be made into good flows of the flood waters. Under the stipu hay; and that therefore he turned about 298 lations of the lease, as will be observed, the head of sheep and 8 or 9 head of other live defendants, in consideration of transferring stock upon the land, and thus, from the lat the possession and use of their land to plainter part of June or the first of July to a tiffs, were to receive one-third of any and all short time before the 28th of September, used crops grown and harvested by said plaintifs, said land "off and on" for pasturage purposes. "subject to the lien for advancements made Ile testified that he and his coplaintiff had hereunder and to be made hereunder" by said under lease at the time an adjoining farm, plaintiffs. The latter, under the terms of the on which they also pastured their sheep and lease, advanced to defendants, upon the exeother cattle, alternately running them on the land leased from defendants and then on and were to thereafter further advance to the adjoining land mentioned. The other them on the first day of each month the sum plaintiff', J. D. Carstenbrook, corroborated the of $5+ "commencing with the first day of testimony thus given by his partner and co February, 1904, during the period of this plaintiff as to the unfavorable conditions with lease, that is, up to and including the 28th which they were confronted in an effort to day of September, 1901"'; said advances to ('ultivate the land in accordance with the be made "upon the request and demand" of terms of the lease and their failure to do so said defendants. for the reasons stated by the first-named wit The contention is that the action was preness, and also upon the point that the grass maturely brought because the plaintiffs deor vegetation on the land after the flood faulted in making the last advance of $.31; waters had receded, and it was too late to that is, the advance which they would have (lo anything in the way of seeding the land been required to make upon demand of dein wheat and barley or either, was unfit to he fendants if the land had been successfully profitably mown for hay. Some five or six farmed. In other words, the sum of $3+ not other witnesses-farmers residing and who having been advanced or loaned to appellants had for many years lived and farmed in the for the month of September, no right of ac1:eighborhood of the land in question-gave tion accrued to respondents for the total testimony corroborative of that given by amount already so received by defendants. plaintiffs. All of them testified that plain The contention is, in our opinion, wholly ·tiffs, by the exercise of the most prudent without any reason for its support. l'pon husbandry, lid their utmost to cultivate and the question of the time of repayment, the grow suitable crops upon the land, but fail| agreement is in no sense obscure. It pr:)cul because of the intervention of unfavorable vides that said "advancements made and to climatic conditions; that, under the circum be made hereunder by said second parties, stances, it was impossible to crop the laud; together with interest as aforesaid, shall be

on cution of the instrument, the sum of $213.

repaid by said first parties to said second favorable conditions which existed, by what parties at the harvest of said crops, in gold process of reasoning can it be maintained coin," etc. It certainly would not be at that, under the terms of the lease, intertempted to be maintained that this clause preted agreeably to reason, the plaintiffs were of the lease means that the money should not in no position to sue for advances already be returned until crops had been actually made, because they had not made the further barvested, and it is not so contended. The loan of $54, which they would probably have proper and the only true construction of it. been required to make in the event that the is that the money should be repaid at that land had been successfully cropped? The time of the season when crops, if there were lease may well be construed as obligating any, should be harvested, or at any other plaintiffs to make the loans to defendants time, we think, when it could become a cer as stipulated therein so long as there existed tainty or settled fact that it was impossible, a prospect or hope of realizing some returns from the inordinate quantity of water from from the cultivation of the land in the manthe river overflows covering the land, to grow ner agreed upon, and that, when the time arcrops thereon. The evidence shows that it rived that any reason for such prospect or was plainly apparent to the parties to the hope ceased to exist, then the obligation to lease, at and before the time at which crops make such advances ceased to be binding or should have been harvested upon the land of any force. We can conceive of no reason, had they been seeded and grown, that there under a fair interpretation of the language was no possibility of securing crops from the of the lease, why the plaintiffs should have land, and, in consequence, no possibility of been forced, before acquiring a right to sue the receipt by the defendants of the compen for moneys already loaned to defendants, sation to which they would have been entitled to go through the form of advancing a furhad the season been more propitious. The ther sum of $54. The logic of the argument conditions upon which the land was leased may be stated thus: “We owe you, it is true, necessarily involved returns to both parties the sum of $590," say the defendants “but from their investment, as it may properly you have no right now to sue us, nor can you be styled, as indeterminate, uncertain, and ever acquire any such right until you have problematical as must be usual to enterprises made the advance to us of the further sum which, like this, are required to depend, as of $54. The reason for such further loan among the prime factors essential to their

has, of course, ceased to exist, but we are, prosperousness and final success, upon fav nevertheless, under the strict letter of the orable meteorological and other conditions. lease, entitled to a further advance of $54. Each of the parties, in other words—the

When you have thus carried out your part defendants as well as the plaintiffs—by of the agreement, you are then authorized their written covenants manifested, mutually, to and have the legal right, immediately a willingness to take a chance of reaping the thereafter to sue us, not only for the last adbenefits which ordinarily attend such a ven vance made, but for the whole amount loaned ture, and of suffering together the disadvan

to us." This, it seems to us, is the necessary tages and losses which the interference of ad

effect of the argument, and the proposition is ventitious circumstances too often bring to it.

obviously a reductio ad absurdum. The termination of the lease was fixed for

We think the findings sufficiently respond the latter part of September in order, without to and include all the material issues tenderdoubt, that the entire harvesting season ed by the pleadings. The specific complaint would thus be included in and covered by the

upon this point is that the court omitted lease, thereby giving plaintiffs full oppor to make any finding upon the issue involved tunity to properly gather whatever crops in the alleged counterclaim set up by the they might deem it the part of wisdom to

defendants to the effect that "during the grow. There is nothing in the language of

period of the lease plaintiffs used the leased the lease, reasonably construed, which bound

premises for pasturage purposes solely," etc., plaintiffs to advance the $54 a month after

and that “the reasonable value of this pasturit became certain that there could be no pos

age was the sum of $1,000.” The finding of sible hope or expectation of harvesting a

the court upon this question is as follows: crop of any character from the land. The

“That said plaintiffs, under thr. terms of moneys received by defendants from plain

this agreement, are entitled to all of the pastiffs were, it is admitted, mere loans, to se turage on said land during the terms of said cure repayment of which it was agreed that lease, and that said defendants take nothing plaintiffs should retain, until their accounts

by reason of their counterclaim." This findwere adjusted, the share to which the defend

ing is sufficient to cover the issue to which ants, by the terms of the lease, would be en It relates. It appears to be clear enough to titled, of any crops which might be harvested require no amplification or explanation to upon the land. That point or stage of the comprehend its meaning. The plain meanseason having been reached where it must ing of it is (and it can be construed as meanhave been absolutely clear to both parties ing nothing else) that the pasturage on the that no crop of any kind whatsoever could land was the property of plaintiffs, and that be gathered from the land, owing to the un therefore the claim of defendants that it be

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