Lebanon Production Credit Ass'n. v. Feldhaus

OPINION By ROSS, PJ. This is an appeal on questions of law from the Court of Common Pleas of Butler County. Ohio. The trial was to the court without, a jury. The plaintiff brought suit to foreclose a chattel mortgage upon a one-half interest in a forty acre crop of wheat, alleged to be the property of Sylvan Corwin, the other one-half interest in the crop being admitted to be the property of Corwin’s co-defendant, John Feldhaus. For the sake of defining the issues presented to this court only a brief statement of facts is necessary. Corwin and Feldhaus had been for some time previous to the incidents furnishing the basis for the present litigation, respectively — tenant and lessor under a written lease, which terminated January 10, 1937. In the summer of 1936 — the tenant house burned. Shortly thereafter upon the representation of Feldhaus that a new tenant house would be erected, a verbal agreement to continue the relationship was entered into between the parties. The. new lease was to become effective January 11, 1937. Corwin rented a house about one mile from the farm of Feldhaus, and continued to work upon the farm. The crop of wheat in- question was planted by Corwin in the fall of 1936. Feldhaus furnished the seed. About January 1, 1937, Corwin concluded that he, could not afford to continue the arrangement as Feldhaus had not erected a new tenant house and Corwin was compelled to pay rent for another residence. Corwin notified Feldhaus that he was abandoning the farm. Some arrangement was made between the parties at this time and a division of property was made. The terms of the settlement are not clearly defined in the record. It is clear, however, from the evidence presented by Feldhaus that Corwin did assert a claim for $100 for work in connection with planting the crop. No definite mention of this particular claim was made by Corwin in his answer and cross-petition filed in this case. He contends that a claim for relief upon this item is covered by his general prayer for relief in law and equity. Feldhaus, on the other hand, asserts that he was taken by surprise upon this point and was given no opportunity to meet it. An examination of the record shows that it came up [72] incidentally when Feldhaus exhibited a scrap of paper containing the claim of Corwin at the time he left the Feldhaus farm. This claim must be based upon either an express contract or quantum meruit. No express contract covering this amount appears to have been substantiated by proof. The trial court evidently took the view that Corwin was entitled to the $100 for work and labor as a matter of equity between the parties. Corwin’s pleading was never amended to include the new cause of action. It must be borne in mind that the action originated as a foreclosure proceeding against Corwin. The court found and the evidence sustains the finding that — the mortgage did not cover the wheat crop, as Corwin had parted with all title thereto when he abandoned the farm. It is difficult to see how under our present practice the action could develop into a controversy between the two defendants over matters wholly extraneous to the original proceeding. It could not so develop over the objection of Feldhaus. It appears further, however, that Feldhaus accepted the situation, answered the several claims made by Corwin, as well as the claims of the original- plaintiff mortgagee. Corwin in his pleading states the existence of the contract “and that said defendant Sylvan Corwin has against the said defendant John Feldhaus, Sr., the following claims.” He then proceeds to set out facts establishing six claims, none of which includes the claim of work and labor for planting the crop. It is our conclusion that the claim was not pleaded and the court committed error in rendering judgment for $100 covering this item, when no facts were alleged sustaining same, no prayer made for same, and no amendment asked for at the trial covering same. The presence of this item was wholly incidental to the issues presented to the court. If Corwin has any such claim, he can still present it against Feldhaus in a proper action. The judgment of the court thereon is set aside, and Corwin is still possessed of any rights he may have had before the litigation here considered. The court also rendered judgment for $48.00, the amount of rent paid by Corwin for a residence after the burning of the tenant house. The tenant house burned while Corwin and Feldhaus were operating under the previous agreement. There is nothing in the relationship of landlord and tenant requiring the lessor to provide new quarters when the tenant house is destroyed. No special agreement appears covering such a claim. Under the statute, §8521 GC, the common law rule requiring the tenant to continue to pay rent is abrogated in the absence of special agreement." There is no provision of law requiring the landlord to furnish new quarters. An order in the alternative was made as to a brooder. This court does not know what action was taken under the order. It was not such a final order as will sustain an appeal. It is contended that the receiver should not be compensated for services in reaping the crop. Feldhaus is the appellant. He took no appeal either from the appointment of the receiver or the overruling of a motion to discharge. He prayed in his answer and cross-petition for alternative relief, suggesting that if the receiver was properly appointed, certain charges be paid by the receiver to him. Feldhaus did not appeal either from the appointment of the receiver or the entry overruling his motion to discharge the receiver. He moved for increase in bond. The receiver filed two reports — in the first, it appeared that he employed men to harvest the crop — thresh it — and store it. In the second report, under order of court he sold it. All of this was for the benefit of the defendant Feldhaus. The receiver also employed counsel. His appointment was an act of the court. He became an officer of [73] the court. He was appointed and con-, tinned to operate in an ancillary proceeding wholly collateral to the main action. In the ancillary proceeding Feidhaus possessed full rights of appeal. Hoover-Bond Co. v Sun-Glow Industries, Inc., 57 Oh Ap 246, 253. Having failed to avail himself of the right to appeal from the appointment of the receiver and the overruling of his motion to discharge, Feidhaus cannot now complain that proper Sees should be allowed the receiver operating as an officer of the court under its orders. We conclude, that as the appointment of the receiver remained unchallenged and he performed services in connection with the corpus in his custody, he is entitled to the compensation allowed. We conclude, therefore, that the judgment of the Court of Common Pleas shall be reversed to the extent that it awarded $100 against Feidhaus for work and labor and $48.00 for rent, and judgment on those items is entered-for the defendant, Feidhaus. The appeal as to the $25.00 for the brooder is dismissed, there being no final order to review here. The award of $50.00 compensation for the receiver is affirmed. HAMILTON, J, concurs.