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De Remer v. Anderson

December 31, 1918

MARY DE REMER, RESPONDENT, V. CHARLES J. ANDERSON, APPELLANT.


Appeal from Second Judicial District Court, Washoe County; R. C. Stoddard, Judge.

M. B. Moore and J. M. Frame, for Appellant.

A. A. Heer and James Glynn, for Respondent.

By the Court, McCarran, C. J.:

This was an action for unlawful detainer. It appears that on the 14th day of March, 1914, a lease was entered into between the appellant and respondent here, pursuant to which instrument appellant took possession of the premises, a part of which is involved in this controversy. The lease on the premises contained, among other things, the following provisions:

“That the said party of the first part, for and in consideration of the amount herein mentioned and the terms and conditions hereinafter stated, hereby leases and lets to the said party of the second part all of her home ranch, the same consisting of about sixty acres of land and lying south of Reno, in Washoe County, Nevada, on the Virginia road to the Corcoran ditch, and extending on the south from the Haynes ranch northerly to what is known as the South Side drain ditch. This lease is to be in force and effect and to extend for one year from the date hereof, or to and including the 14th day of March, 1915.

“It is understood and agreed that this lease is extended for another four years or from the 14th day of March, 1915, to and including the 14th day of March, 1919, on the south ten acres, more or less, which said south ten acres extends from the Haynes ranch north to the irrigating ditch used by Menke. The said party of the second part is to pay for the use of the said land herein leased for the first year, or until the 14th day of March, 1915, the price and sum of $375 in cash. Said

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$375 is to be paid as follows: $100 on or before April 10, 1914, and $275 on or before the 1st day of November, 1914.

“It is understood and agreed by and between the parties hereto that the said second party is to pay for the use of the south ten acres for the term of four years and extending from March 14, 1915, until March 14, 1919, the price and sum of $150 per year. Said sum and amount is to be paid $75 on or before the 10th day of April, and $75 on or before the 1st day of November, of each and every year during the life of said lease.

“It is understood and agreed by and between the parties hereto that said first party hereby gives and grants to the second party an option or right to purchase all or any part of the land herein leased which lies south of the fence on the south side of the orchard running due west from the Virginia road to the Corcoran ditch, and extending southerly to the Haynes ranch and containing twenty acres more or less. This option or right to purchase is for the term of five years from date hereof, or to and including the 14th day of March, 1919.

“It is further understood that, if the said party of the second part does at any time during the life of this option elect to exercise his right of option and to purchase the said property or any part thereof, he may do so by paying therefor the price and sum of $300 per acre cash, or such as he elects to purchase during the life of the option.”

On October 29, 1914, pursuant to the terms of the lease, appellant visited the home of respondent and there paid the amount specified in the lease as the last payment, to wit, $275. On that date a receipt was given, and this instrument, as admitted in evidence, reads as follows:

“October 29, 1914.

“Received of Charles J. Anderson, two hundred and seventy-five dollars, in full for rent on De Remer ranch for one year to the first of April, 1915.

“275.00 Mary De Remer.”

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It will be noted that that which is designated in the lease as the south ten acres, being demised to the appellant by the terms of the lease for a period of five years, or until March 14, 1919, is not involved in this controversy.

Appellant here contends that the action was prematurely commenced in the court below, inasmuch as it was instituted prior to the 1st day of April, 1915. In this respect appellant contends that the time within which appellant should have possession of the premises pursuant to the terms of the lease was extended by the mutual agreement of the parties, and that this is evidenced by the receipt of October 29, 1914, containing the words “to the first of April, 1915.” The record as it is before us as to all matters of fact presents sharp conflicts in the evidence. Respondent here, in testifying in the trial court, denied the existence of the receipt of October 29 in the form in which it was presented; that is, containing the words “to the first of April, 1915.” She admitted having signed the receipt, but contended that at the time of the placing of her signature to the instrument it terminated with the words “one year.”

1. Primarily it may be said that the receipt here in question was but an evidence of money paid by appellant and received by respondent. It in no wise referred to the lease pursuant to which the money was paid, nor did it set up or establish new or different consideration sufficient to validate a new contract, or one varying the terms of the old. This latter was a prime essential. (Robinson v. Hyer, 35 Fla. 544, 17 South. 745.) The holding over by the appellant from the 14th day of March, 1915, to the 1st day of April of that year, could only be pursuant to a valid agreement or contract by which the terms of the old contract were extended.

2. It is the contention of appellant that the relation of possession by respondent of the leased premises for a period of time after making of the lease, to wit, from the 14th day of March to the 1st day of April, 1914,

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and the depriviation to appellant of the possession of the premises for that period, constituted the consideration by reason of which the lease was extended, as evidenced by the receipt from the 14th day of March 1915, to the 1st day of April. This contention of appellant, if it were supported by the evidence, might have some stability, for it is a rule eminently recognized that a consideration emanating from some injury or inconvenience to the one party, or from some benefit to the other, is a valuable consideration (Conover v. Stillwell, 34 N. J. Law, 54; Story on Contracts, 429; Parsons on Contracts, 431); but the element of inconvenience or injury to the one party or the convenience to the other, when the same is controverted, is a matter of fact, to be determined as any other element. Such may be inquired into, and, if the inconvenience to the one or the convenience to the other is not supported by the proof, the element of consideration based upon such facts falls. (Conover v. Stillwell, supra.)

The evidence in this case bearing upon the question of the inconvenience to appellant, affected by his failure to secure possession of the premises between the 14th day of March, 1914, and the 1st day of April of that year, is, to say the least, unsatisfactory. It was testified by the respondent and by the witness Brewington that appellant had immediate possession of the premises on and after the 14th day of March, 1914. In fact, appellant himself testifies to his having put a man to work on the premises, and nothing is presented by the record which would indicate that the respondent did anything the nature of which would be to deprive appellant from taking possession. It is claimed that during the interim between the 14th day of March and the 1st day of April, 1914, certain horses were pastured on the premises, and that the respondent had collected the pasturage for the same. If this be true it constitutes a separate matter, involving a right and a remedy of which appellant could have availed himself. Everything being considered, we

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are unable to find wherein the action for unlawful detainer was prematurely instituted.

3-6. It is the contention of appellant that, inasmuch as the lease pursuant to which he obtained possession of the premises granted him an option or right to purchase “all or any part of the land * * * leased which lies south of the fence on the south side of the orchard,” etc., and further granted him the right to exercise such option or right to purchase at any time within five years, or to and including the 14th day of March, 1919, and he having elected to purchase a certain designated tract included within the premises described and containing 5.21 acres, and having tendered the purchase price thereof pursuant to the terms of the lease, it was error for the trial court to refuse to allow appellant to prove that he was put into possession of that portion of the land sued for. Further, it is contended in this respect that, inasmuch as the judgment for rental was based upon an acreage including this 5.21 acres so selected, the judgment to that extent was excessive, and the rental fixed exorbitant. In this respect the respondent argues, and we think correctly, that, had appellant in view of the terms of the lease, sought to purchase all of the tract of land, the expression “all or any part,” as set forth in the lease, might have been a sufficient description; but, inasmuch as appellant elected to purchase only a fractional portion of the tract of land, to wit, 5.21 acres arbitrarily selected by him, the language of the lease constituted no description whatever. It is a doctrine well established with reference to the introduction of oral evidence explanatory of ambiguities in written instruments of a nature such as the one involved here that, where there is a description of some sort, which description may be made intelligibly definite by evidence aliunde, parol evidence may be introduced to identify the land or premises in the contemplation of the makers of the instrument. But the rule is universal that courts will not, for the purpose of decreeing a

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specific performance, reform a written contract in a case of omission through fraud or mistake. It is doubtful or ambiguous terms only that may be clarified by evidence aliunde. But the entire absence of terms of description or definition will not be supplied by parol evidence. (Crockett v. Green, 3 Del. Ch. 466.)

The case of Rampke v. Beuhler, 203 Ell. 384, 67 N. E. 796, affords an illustration of an application of the rule which we deem applicable here. There the agreement between the parties reads:

“Claus Eggers and Ester Eggers herein agree to deed to William Beuhler, of Harvey, Cook County, Illinois, four lots, 25 feet by 150 feet deep, in either section 8 or 9, town 36 north, range 14 east of the third principal meridian, in Cook County, Illinois, for his assistance in case of ...


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