Opinion
No. 21310.
February 6, 1950.
APPEAL FROM THE COUNTY CIRCUIT COURT, ANDREW COUNTY, FRED H. MAUGHMER, J.
Barry Barry, St. Joseph, O. E. Shultz, St. Joseph, for appellant.
John J. Robison, Maysville, Harold L. Miller, Maysville, for respondents.
This suit in ejectment was brought by the respondents for possession of a farm, for damages for withholding and for rents and profits. A jury was waived. Judgment was against appellant and another person for possession and $50 for rent for two months, and against appellant alone for $50 a month, beginning March 1, 1949, until restitution of the premises. Defendant Charles Gorley has appealed.
By their petition respondents alleged that on January 1, 1949, they became and still are legally entitled to the possession of the real estate therein described; that defendants Emma Pfander and Charles Gorley were unlawfully withholding the said land to the respondents' damage of $66; that the rental value of the land for the crop year of 1949, was $800. The prayer was for possession and $66 damage for the withholding, and $66 a month for rents and profits until restitution of the premises. The answer was a general denial.
Albert Pfander, at the age of 86 years, died intestate July 13, 1948, leaving a widow by his last marriage, defendant Emma Pfander, and two married daughters by a previous marriage, and a grandson, son of a deceased daughter of said previous marriage. The daughters and grandson are the heirs-at-law of Albert Pfander and are the respondents here, the grandson appearing by attorney in fact.
The farm land in question was the property of Albert Pfander at the date of his death and it descended to respondents, subject to the marital rights of the widow Emma Pfander, who was also named administratrix of the estate. Pursuant to an agreement in writing between respondents and Emma Pfander on September 29, 1948, she deeded her dower and homestead rights in the land in question to the respondents. The farm was about to be sold for debts of the estate. For the consideration of $3500 in cash, paid to her by the respondents, she agreed, in addition to the deed mentioned, and for the additional consideration that respondents pay all claims and costs of the administration, to forego her one year's allowance for support and her commissions to date as administratrix. She had been discharged as such and respondent Violet Brunner had been appointed in her stead. As a part of the contract she was also to keep and retain all growing crops on the farm described, but definitely to surrender possession of the farm by January 17, 1949, and to remove therefrom all her personal possessions and crops, without charge against her for rent until that date. She reserved her interest in any undiscovered assets.
Upon demand for possession January 1, 1949, Emma Pfander failed and refused to move from the premises, but did so about two months thereafter. Appellant Charles Gorley refused and still refuses to remove from the premises, claiming right of possession as tenant from year to year under an oral contract of letting which he claimed he had with the deceased Albert Pfander during his lifetime. Gorley asserts that he never received a 60 day notice to terminate his tenancy as required by Section 2969, R.S.Mo. 1939, Mo. R.S.A.; that the respondents had the burden of proving his possession unlawful and have failed to sustain such burden. Respondents contend that if appellant had any agreement with the deceased Albert Pfander it was merely to farm the tillable part of the land as a "share cropper", requiring no notice for termination, and that as to the remainder of the farm, he was a mere employee of the deceased, being furnished his room, board and washing in return for the performance of the chores in and about the house and barn, which employment and arrangement terminated with the death of the deceased.
On account of the conflict of evidence it is necessary to review the testimony somewhat fully. Respondent Violet Brunner testified, in part, that her father had farmed the place since about 1906, except that during the last few years of his life, on account of growing infirmities of age and health, he required and employed help. He then employed the appellant. Appellant worked in the fields and did the chores, such as milking the cows and pasturing them. Mr. and Mrs. Pfander and appellant lived in the house, and Mr. Pfander paid all the grocery bills. When the settlement was made between respondents and Mrs. Pfander after the husband's death she was asked: "What about Charley? A. I'll take care of Charley". When possession was requested she was asked when she was going to move, and was reminded that the first of the year was the date agreed on, and she replied: "My contract don't read that way". Upon that occasion appellant followed witness to the porch and asked: "What are you going to do with the farm, Violet?" Witness replied: "Sell it". He stated: "If you want to rent it, I want to rent it and will give you grain rent or cash". She replied he was too late; that the farm was already rented, if they did not sell it. Appellant made no claim then to any right of possession on his part. On cross-examination witness said her father had told her appellant was doing the chores for his board and was to get a share of the crops he put in.
Respondent Norma Fulk testified, to many matters as her sister, the previous witness, had testified, and stated that her father said also in the presence of Mrs. Pfander "that he had rented the farm land to Mr. Gorley on share and Mr. Gorley was to do chores for his room and board". She said her father did furnish appellant room and board and appellant made no other payment therefor. She said when appellant first came to the place her father furnished all the equipment, but she did not know what appellant had acquired during the last year. Her father had milk cows and hogs on the place up to the date of his death and never told witness he paid appellant anything for their pasture. Appellant did the chores and got his meals at her father's house, prepared by Mrs. Pfander. The groceries were all paid for by her father. When witness called upon Mrs. Pfander about the first of January and asked her when she would move, Mrs. Pfander replied "She didn't know. The weather had been bad". respondent Cowardin testified that after the first of the year he went to the farm with the other heirs, and in the presence of appellant, Mrs. Pfander said, regarding surrender of possession, that "She intended to move, but the girls treated her so bad that she had made up her mind she was not going to". At that time appellant remarked: "They didn't give me any notice". Respondent Violet Brunner, being recalled, testified that upon the occasion when she was inquiring of Mrs. Pfander about removing from the premises, the latter said that she felt "blue" about having to move, and that "Charley didn't want me to stay here because there wasn't enough ground for him to farm, only 18 acres".
In behalf of the defendants, Mrs. Pfander testified that she had moved from the farm on February 24, 1949; that she had lived there with her husband for 25 years; that during the last few years of his life he was sickly and unable to do the work of the farm and in 1943, employed the appellant to gather the corn; that appellant stayed and did the milking and other chores; that in March, 1944, her husband "rented" the place to appellant for the coming year, paying him in cash for gathering the corn in 1943. She said she told respondents when they asked her to move that she had not secured a place to move until the last few days, and that the weather had been so bad she couldn't move. She said appellant had been on the farm since he first went to work there and was still there. She denied that she told the respondents that she would "take care of Charley", and said the appellant was not discussed or mentioned. Her conclusions as to what her husband's agreement was with appellant were stricken out by the court. She said that she did not keep possession after the first of the year, but that appellant was holding possession, and she just kept house for him.
"Q. But you knew now that you were supposed to leave the first of the year? A. I did not think I was to leave. I was to give possession, but I did not have to leave, could keep house for Mr. Gorley. He had a right to have any one to keep possession.
"Q. To whom were you supposed to give possession? A. To the rightful owners — the children.
"Q. And you are not in possession now? A. No, sir.
"Q. To whom did you give possession? A. To Mr. Gorley, I guess. He is the one who has got possession.
"Q. You gave him possession? A. Didn't give it to nobody. I just moved. * * *
"Q. Now, Mrs. Pfander, you stated that Mr. Pfander had rented the farm to Charley Gorley * * * A. Yes, sir.
"Q. And now you state that you were in possession? A. Well, I understood that I was in possession until the first of the year. Mr. Gorley was in possession, had the place rented, but I had a right there. * * * I thought I had possession of the place by being Mr. Pfander's wife all these years".
She said: "We had rented it to Mr. Gorley", "he had possession"; that in March, 1944, "was when he (Mr. Pfander) rented him the place", "rented him the whole place, pasture and all", "Got half of the grain he raised", "He had one cow and milked it and put it in the milk with ours, and sold it and used it for the grocery bill"; that a neighbor, Pearl, rented a few acres of the place and appellant had the whole place rented and gave his permission to Pearl; that appellant was "to do the chores". The witness got her half of the corn crop for 1948 and sold it for about $200.
Appellant, a witness in his own behalf, testified that after having several farm jobs in the community he went to Mr. Pfander's farm in 1943 to help shuck corn. Upon objection he was first not allowed to tell of any agreement he had with Mr. Pfander, but was thereafter, over objection only that the answers called for conclusions, allowed to state that after March 1, 1944, he "rented the farm". He further stated that he did chores, put in oats, corn and alfalfa, mowed the pastures, fixed the fences and harvested the crops. He received half of the crops. For the first year he used tools and implements belonging to Mr. Pfander, but they were sold and witness bought some of his own thereafter. He reserved his half of the crops. "Q. Well, did you receive your board? A. Board and room, yes sir. Q. And am I to understand that that was in payment for the chores that you performed? A. Yes, sir". The chores consisted of bringing in the wood, feeding the chickens, "and everything around the house there". He said there had been no conversation with respondents about his right of possession until Mrs. Fulk came to the place just before January 1, 1949, and said: "When you move, I want the keys", and Mrs. Pfander said "What will Charley do?" and Mrs. Fulk said: "Well, he can hold possession of the ground, but not the house". He said he received no written notice to quit the premises. When asked to explain his offer to Mrs. Brunner to rent the farm, he said: "I asked Mrs. Brunner if they had sold the farm. She said: `No'. I said: `What are you going to do?' She said: `I don't know'. I said: `I want to rent it' — words to that effect". He said he offered to rent it from the first day of January "if she wanted to rent it right". He said he thought he would offer to rent it before they took possession. "Q. Well, then didn't you have possession? A. Yes, sir, I had possession", "Mrs. Brunner expected me to give possession the first of March". He said no contract was made with Mrs. Brunner to rent the place for the current year and witness was staying because he was given no notice.
A neighbor, as a witness for defendants, testified that Mr. Pfander had spoken to him of having "rented" his place to Gorley. "All I remember of him saying was that he was just going to give him half the crop, like any other share cropper would. He also said he had to have somebody help him do the chores — wasn't able to get out and do them"; that from March 1, 1944, until January 1, 1949, appellant did most of the work on the farm. When witness occasionally wanted to borrow some of the implements, Mr. Pfander would say: "See Charley". He said about a year before his death, Mr. Pfander said Charley might want to leave and inquired if the witness' son would want to put in the crops on a share basis if Charley left, "some one to share the crop", "just like he rented to Charley". Witness bought Mrs. Pfander's half of the crop for 1948.
At the close of the evidence the court made the following findings of fact and rendered judgment:
"It will be noted that the contract signed by defendant Emma Pfander and the heirs of Albert Pfander provided `That Emma Pfander could occupy the premises until January 1, 1949, rent free.' She occupied these premises, by her own admission, until February 24, 1949, and was just a little vague as to whether or not that was the exact date of the termination of her occupancy.
"I find that the defendant Charles Gorley, as a share cropper, in the farm year 1948 and for prior years, tended the cultivated land in dispute on a share basis, and that whatever possession or occupancy of the house and the balance of the land, which he enjoyed, was as a hired helper of Mr. Pfander and possibly later for Mrs. Pfander. The crops on the land which this defendant farmed were harvested prior to January 1, 1949, and plaintiffs, as owners, were then entitled to possession.
"There was no evidence offered as to the defendants, or either of them, having committed any waste or damage. Little evidence was offered as to the rental value of the property. However, from the location of the land, the size of the farm, and the improvements described in the testimony, the Court will be justified in fixing a rental value.
"I find that plaintiffs were entitled to possession on January 1, 1949; that the rents for the months of January and February, 1949, which, of course, covered only the residence and out-buildings, were $25.00 monthly. I find further that the reasonable rental value of the whole farm for the farm year, that is, from March 1, 1949, on, is $50.00 monthly.
"It is therefore, ordered, adjudged, and decreed that the plaintiffs have immediate restitution and possession of the premises described as follows:
(Description)
"It is further ordered, adjudged, and decreed that plaintiffs have and recover from the defendants Emma Pfander and Charles Gorley the sum of Fifty Dollars ($50.00) as and for rent for January and February, 1949, and that plaintiffs have and recover from the defendant Charles Gorley the sum of Fifty Dollars ($50.00) monthly, commencing as of March 1, 1949, and a like amount of Fifty Dollars ($50.00) monthly thereafter until restitution and possession of the premises be surrendered to them by the defendant Charles Gorley, and that plaintiffs have and recover from the defendants their costs herein expended, and that execution issue therefor.
"Fred H. Maughmer "Judge".
Under Section 114 of the Civil Code, Mo.R.S.A. § 847.114, this court is required to review a jury-waived case upon both the law and the evidence as in suits of an equitable nature, and the judgment shall not be set aside unless clearly erroneous, and due regard must be given to the opportunity of the trial court to judge of the credibility of the witnesses. It is clear that Mrs. Pfander's right to possession terminated January 1, 1949, under the express terms of her written agreement. As to the appellant, the trial court held, on conflicting evidence, that as to the cultivated land on the farm in question, appellant simply "tended" the same on a crop share basis, and that whatever occupancy of the house and balance of the farm was enjoyed by the appellant, it was as a hired helper of Albert Pfander and possibly later for Mrs. Pfander. A "share cropper" has been held not to be a tenant, and, therefore, is not entitled to the notice required under Section 2969, R.S.Mo. 1939, Mo.R.S.A., to terminate the relationship. Shoemaker v. Crawford, 82 Mo.App. 487; Haggard v. Walker, 132 Mo.App. 463, 111 S.W. 904. As to the employment for an indefinite period for personal services under the conditions here in evidence, the death of the employer terminated the contract for the service. 35 Am.Jur. p. 465, Sec. 29; 39 C.J., § 73, page 78; 56 C.J.S., Master and Servant, § 37.
After giving careful consideration to the admissible evidence in the record, we note the conflict of testimony presented, and realize the greater opportunity the trial court had to judge the credibility of the witnesses, to which we must give due regard. We cannot say from the record that respondents did not sustain their burden of proof, nor that the judgment of the court is clearly erroneous. Judgment affirmed.
All concur.