Harrison v. Burnes

G-bangee, J. The ground of the motion on which the court directed the verdict for the defendant is: “The evidence shows without contradiction that the ■plaintiff entered into possession of the premises, and maintained possession during the period for which it is sought in this action to recover rent, and to recover damages for breach of the agreement or lease.” To properly determine the effect of the evidence, it is important to have in mind the facts of the case upon the state of the pleadings. Under the petition and answer, the contract was admitted but the breach thereof denied. The answer contained an affirmative defense of minority, and a rescission of the contract because of it. The reply makes no denial of the fact of minority or the rescission. It, however, states facts in avoidance thereof. Under this state of the pleadings 448 tlie matter in the answer sought to he avoided will be taken as admitted. Day v. Mill-Owners’ Mutual Fire Ins. Co., 75 Iowa, 694. The facts pleaded in avoidance-thereof are denied by operation of law. For the plaintiff to recover, he must establish a breach of the contract, which was done, to the extent of proving that, the defendant neglected to take possession of and cultivate the farm under the lease. He must then overcome-the admitted fact of minority and rescissions by proof of the facts pleaded in avoidance, and this there is an entire failure to do. The facts, after the plaintiff’s evidence was offered,, were as follows: A failure of the defendant to work the farm under the lease. The defendant, when he made the contract, was a minor; and, before and after attaining his majority, he gave notice of a rescission. Thereafter the plaintiff took possession of the farm to the extent of leasing it to another, and-received the avails thereof. No other facts bear on the validity of the court’s action in directing a verdict. The uncon-tradicted evidence shows that, after rescission of the contract, the plaintiff took possession of the place, and without a further showing to avoid the defense of minority the plaintiff could not recover; and the court properly directed a verdict for tke defendant. Apeikmed.