Goss v. Lindberg

Birdzell, J. This is an appeal from a judgment entered in the district court of Ward county, awarding a permanent injunction to the plaintiff and respondent, which enjoins the defendant and appellant from trespassing upon the land of the plaintiff and cutting and harvesting, threshing, or marketing the crops growing thereon. The controversy arose out of a misunderstanding between the parties as to their relationship following the execution of a contract entered into in 1917. The plaintiff, E. B. Goss, being the owner of three quarter sections of land, entered into a contract with the defendant, Ben Lindberg, in the month of February, 1917, whereby Lindberg agreed to break and sow to flax 400 acres or more of the plaintiff’s land at $5.50 per acre. In the contract options were given as follows: “It is further understood that Lindberg will have first chance at cutting and harvesting, threshing, and hauling and marketing said flax [102] providing be will perform the same immediately when Goss is ready to bave it done and as cheaply as others will do it. “It is further understood and agreed that if Goss is satisfied with the way said breaking and seeding and other work is done, Lindberg shall have the first chance at renting said land so broken for the cropping season of 1918 upon the following terms, to wit: “Goss to furnish seed. Lindberg to double-disk said land in the fall, if possible, and seed the same to wheat in the spring of 1918. Goss to furnish one-half twine and one-half thresh bill and take one-half of the crop. Lindberg to deliver- in the elevator without charge Goss’s o-ne half of the crop for 1918.” More than 400 acres of the land were broken and sown to flax in 1917, but, owing to drouth, the seed failed to sprout and there was consequently no crop. Lindberg was paid for the work he did under the contract in 1917. . During the winter there was some talk between the parties relative to the farming of the land the following season. Both parties agree that in these conversations, occurring during December, January, and February, the plaintiff proposed to the defendant that he put in the crop for hire. Goss testified that the defendant actually proposed to seed the land for $2 per acre, but that he did not at the time accept his proposition because he considered the price too high. Lind-berg, on the other hand, testified that he told Goss that he would not crop in for hire, but that he would hold him to the contract. It is clear from ihe testimony of both parties that a definite agreement for putting in the crop for hire was not reached during the negotiations in the winter. ' In the spring of 1918, Goss shipped seed wheat to Lindberg, giving certain directions with reference to hauling and cleaning the same. On April 20 th, Goss went out to ascertain what was being done towards putting in the crop, and, upon inspection, learned that a portion of the land had been disked and that Lindberg was making preparations to continue the seeding operations. The season of 1918 being early, it seems that Goss felt that the seeding operations should have been further advanced on April 20th than he found them to be; and, during a conversation with Lindberg on the above date, he, Goss, suggested that he would have one Thompson, a tenant upon another of his farms, seed a portion of the land amounting to about 140 acres. Lindberg did not [103] take kindly to this suggestion and the parties separated without a definite understandng. Goss, however, immediately afterward wrote Lind-herg to the effect that he had decided to let Thompson put in the 140 acres, giving as his reasons therefor the lateness of the season, and that he had had to buy $400 worth of feed for Thompson, so that Thompson was already paid for the work. To use his own language, he said: “I cannot afford to pay him in that way and you, too; or in other words, pay you for it and loan him the money for the whole season, hard as times are, too. So will let him work out part of what he owes me that way.” After the letter was written, the defendant seeded all of the land except that portion which was turned over to Thompson by Goss. In the month of July, Goss wrote the defendant to the effect that he had been up to see his crop and had intended seeing the defendant about giving him the first chance at cutting that portion which had been seeded by him. He also stated that he would probably be up again during the week, at which time he would want to know what the defendant would want for cutting the crop. In reply to this letter, Lindberg wrote as follows: “I have your letter of the 22d inst., and cannot understand why you should be looking for anyone to cut the crop on the Hanna land. I put in this land according to our contract and will see to the cutting of it when it is ready and deliver your half to the elevator when it is threshed.” As a consequence of the disagreement as to the ownership of the crop, this action was brought, and it is in this court for a trial de novo. In addition to the usual specification demanding a review of the entire case, the appellant specifies that the complaint does not state a cause of action, it appearing on its face that the plaintiff has an adequate remedy at law. Whatever merit there may be in the appellant’s contention, that the case is one that should, have been tried to a jury, we are satisfied that he is in no position to predicate error upon the failure of the trial court to submit the case to a jury. The action is one for injunction, and the counsel for the defendant could not have been misled as to the character of the proceedings from their very inception; yet, according to the record, it was a.t no time suggested that the trial should not proceed before the court as an ordinary trial of a suit in equity. No objection was made to the form of the action, the suffi104 eieney of the complaint, or the method of trial, by either a motion or a demurrer, and the entire controversy was tried before the court on its merits. Under these circumstances, the appellant is in no position to argue that, inasmuch as the case involves a right of possession between plaintiff and defendant, it should have been tried at law as a civil action in forcible entry and detainer. Upon its merits the case involves questions of fact upon which the testimony is conflicting. There were but two witnesses sworn upon the trial, the plaintiff and the defendant. The plaintiff testified to the effect that it was well understood between him and the defendant that he had bought the half section under a crop-payment contract which rendered it necessary that he should get the first crop, and that, owing to the failure of the flax crop in 1917, he was compelled to hire his seeding done in 1918 so that he might realize upon that crop in order to make good his crop payment to the vendor. He testifies that he told Lindberg in the fall and winter of 191.8 that for the above reasons he would not rent the land either to him or anyone else. Lindberg, on the other hand, testifies that when Goss suggested hiring the seeding done he insisted that he would farm the land under the 1917 contract, and that Goss assented to his doing so. The testimony is at variance throughout touching the actual arrangements made, and the version of each party as to their conversations and transactions is consistent with his contention here. It appears, however, from the letter Goss wrote to the defendant, after his visit to the farm in the spring before any seeding had been done but after a little preparatory work by Lindberg, that Goss clearly intended to pay a reasonable price for the seeding of the crop. The portion of the letter quoted above clearly indicates that such was his intention. Following this letter, we find him yielding to Goss’s direction, and allowing approximately 140 acres of the land embraced in the contract of the previous year to be seeded by Thompson for hire. Under the record presented, the testimony of the two witnesses conflicts in every vital point, and the proper solution of this case requires that the findings shall be in accordance with the version of either one party or the other. We are of the opinion that the circumstances disclosed by the record tend to support the version of the plantiff rather than that of the defendant, and the trial judge, who had the benefit of [105] the appearance of the witnesses before him, having found in favor of the plaintiff, we do not feel justified in disturbing the findings. The judgment of the trial court is therefore in all things affirmed. Geaoe, J. I dissent.