Engen v. Olson

BraRd, Justicr. In this case Olson, who was plaintiff below, recovered judgment against Engen in the District Court for rent claimed to be due for certain real estate. The trial was to the court without a jury. Engen assigns error. The action was based upon the following written agreement : “Centennial, Wyo., May 8, 1911. “This is a Egrement betwen Charles Olson, the first party, and Nils Engen, the second party, that Nils Engen rents [526] my piase, S. W. Sec. n, know is the Stinhoff piase on same grown is in preveas contract and the same concideration two Hundred a year.” “Ci-iarlRs Olson." "Nsls J. Engun.” The contract, or lease, which the plaintiff claims was referred to in the writing and which he claims, with said writing, constituted the lease, and which was made part of his petition, is a formal lease from one Richardson to En-gen for said premises for a term commencing April 12, 1910, and ending April 12, 1911, at the rental of $200, payable on or before the expiration of the term. The petition was demurred to on the grounds that it did not state facts sufficient to constitute a cause of action, and that the writing was void for uncertainty. The demurrer was overruled, and defendant answered, admitting the execution of the writing and denying the other allegations of the petition. For other answer he alleged that he had leased the premises from Richardson for the previous year by the lease attached to the petition and that certain water rights were appurtenant thereto which he had used during the term of said lease; that he was deprived of the use of said water and was kept out of possession of said premises during the time in controversy, and for which deprivations he claimed damages. Alleged that the writing of May 8, I9ii,.is so vague, indefinite and uncertain as to be wholly void. Many other matters were alleged at great length, but the foregoing is sufficient to present the questions discussed in this court. The court found that defendant entered into a written lease with the plaintiff for the property described in the petition, said lease to commence May 8, 1911, and terminate May 8, 1912; that under said lease defendant agreed to pay plaintiff $200.00, and that no part of the same had been paid, and gave judgment accordingly. Whether the writing of May 8, on its face sufficiently identified the Richardson lease as the contract referred to, we need not determine, for the defendant, by his answer, pleaded that lease and alleged that he had sustained dam [527] ages on account of the alleged failure of plaintiff to comply with its terms during the period for which he claimed rent. If there was any uncertainty as to the contract referred to in the writing it was made certain by the answer. Not only so but, from the instrument itself, considered in the light of the circumstances attending its execution, as shown by the evidence, we are clearly of the opinion that it was the Richardson lease which the parties had in mind and to which they referred. Engen was the lessee under that lease, and the premises had been purchased by Olson during the term and the lease assigned to him, and it was to him that Engen paid the rent. Olson testified, and it is not denied, that Engen dictated, and that he (Olson) wrote the contract as dictated. It further appears by a letter dated April 25, 1912, written by direction of Engen to the attorney of Olson that the Richardson lease was the one referred to, as in that letter he states that the written contract between himself and Olson calls for the same right and privileges as under the lease from Richardson. That lease was for the land and appurtenances, and it contains no statement that there was any water right appurtenant to the land. Engen testified that Olson had not interfered with his possession or the use of water; that he made no effort to use water because his father-in-law, Wolbul, told him not to do so. He called Wolbul as his witness and he testified that there was no water right belonging to the land; that his ditch ran through the land and when he had more water than he needed he had, in previous years, allowed some of it to be used on the Steinhoff tract. Without further referring to the evidence, we are satisfied that the conclusion of the court that Olson had not violated the contract with respect to water is sufficiently sustained by the evidence. The same is true of his claim that he was never put in possession. He testified that he got some pasture from the land. It is further contended that there is a variance between the findings of the court and the pleadings, in that the allegation of the petition is that the term of the lease com [528] menced April 12, and the court found the correct date to be May 8. The court states in its judgment that plaintiff asked and was granted leave to amend his petition in that respect, and while it does not appear by the record that the amendment was made, the court treated it as made and it will be so considered here. However, if it be not so considered, it is not shown to be material. The statute provides that no variance between the allegations in a pleading and the proof shall be deemed material, unless it has actually misled the adverse party to his prejudice in maintaining his action or defense upon the merits, and when it is alleged that a party has been so misled, that fact must be proved to the satisfaction of the court, and it must also be shown in what respect he has been misled. (Sec. 4591, Comp. Stat. 1910). No showing of prejudice has been made in this case. Numerous other alleged errors are assigned, but a careful examination of the entire record convinces us that the case was fairly tried and a correct conclusion reached by the District Court. Such being the case, the judgment should be affirmed,’ and it is so ordered. Affirmed. Pottur, C. J., and Scott, J., concur.