Tredick v. Birrer

The opinion of the court was delivered by Dawson, J.: These are consolidated actions for the right of possession of two tracts of farming land in Gove county. In one of these, S. S. Reynolds as owner, leased forty-two acres to the defendant under a written contract for the crop year from September 1,1918, to August 31,1919. In the other case, Reynolds as agent of Charles E. Trediek, the owner, leased 160 acres to the defendant for the crop year from September 1, 1919, to August 31, 1920. No written contract for the Trediek land was executed. The defendant remained in possession of the Reynolds land the second year without a written contract. In June, 1920, according to the jury’s findings, defendant had an oral conversation with Reynolds in which the latter assured him that he might have the land for another year; but on August 26, 1920, Reynolds served written notices on defendant of termination of tenancy and demand for possession on the ensuing date of August 31. Defendant refused to vacate. Hence these lawsuits. The trial court gave judgment against defendant as to both tracts of land, and he appeals. While the cases were tried as one lawsuit, it seems necessary to consider their respective phases separately. Of course, under well considered precedents, the contract founded on the oral promise of Reynolds made in June to rent these lands to defendant for another year which was to commence,- not at that time but at a future date, September 1, was void under section 6 of the statute of frauds. (Gen. Stat. 1915, § 4889; Wolf v. Dozer, 22 Kan. 436; Jamison v. Christman, 95 Kan. 131, 133, 148 Pac. 247; Jellett v. Rhode, 43 Minn. 166, 7 L. R. A. 671. See, also, the authorities pro and con in 49 L. R. A., n. s., 820-825.) But as to the Reynolds land, the defendant had leased that land for a year under a written contract. The contract was for the year beginning September 1, 1918, and ending August 31, [490] 1919. When that year expired, defendant was permitted by Reynolds to hold over without a new or a different contract. Another contract in writing was prepared, but it was not executed, and therefore entitled to no significance. In such a situation defendant became a tenant from year to year under the statute (Gen. Stat. 1915, § 5957) ; and, as such, he was entitled to thirty days’ notice prior to August 31, 1920. He only received five days’ notice, which was altogether insufficient to terminate his tenancy. (Gen. Stat. 1915, § 5960.) Plaintiff argues that defendant cannot take advantage of this because in his pleading he set up the invalid contract of June. There was much more the matter with plaintiff’s pleading than with defendant’s. Plaintiff’s action was for an injunction to restrain defendant from farming and seeding the land in the autumn of 1920. By stipulation at the trial, the cause was tried as a possessory action, and in such a situation defendant’s pleading, drawn to answer the suit for an injunction, should not rigidly be construed against him. As an injunction suit, the case should have been thrown out of court. (Snyder v. Hopkins, 31 Kan. 557, 559, 3 Pac. 367) because the plaintiff had a very plain, very speedy, and altogether adequate remedy at law. As a possessory action — forcible detainer, for such it necessarily was according to plaintiff’s standpoint after the stipulation was filed — defendant’s general denial was sufficient answer to that. Indeed, the issues were so badly framed on paper that they could not form a basis for any proper judgment. The effect o^the stipulation was to discard the pleadings, and that the case should be tried on the facts without pleadings. The judgment touching the right of possession of the Reynolds’ land was incorrect. Touching the defendant’s tenancy of the Trediek land, he went into possession' for one year only, for a term definitely fixed, September 1, 1919, to August 31, 1920; and therefore, no thirty days’ notice nor any other notice to quit was necessary. (Gen. Stat. 1915, § 5964; Edwards v. Land & Cattle Co., 98 Kan. 720, 722, 160 Pac. 205.) It follows that the judgment entered for the plaintiff Trediek was correct. The judgment for the possession of the Reynolds land is reversed, and the judgment for the possession of the Trediek land is affirmed.