Opinion
Rehearing Denied Oct. 22, 1974.
Page 401
Johnson, McLachlan, Tempel & Gehlhausen, John Gehlhausen, Lamar, for plaintiff-appellant and cross-appellee. John Gehlhausen, Lamar, for plaintiff-appellant and cross-appellee.
RULAND, Judge.
This case arises out of a dispute between plaintiff Ruben H. Ziegler (tenant) and defendant Edwin Henrickson (landlord) over crops which matured after the expiration of a written lease. Prior to trial landlord moved for summary judgment; the trial court granted the motion in part and denied it in part. The jury returned a verdict for tenant in the amount of $1,810, on the issues not disposed of by the summary judgment. The trial court then granted landlord's motion for new trial on the basis that certain testimony should not have been admitted into evidence. Electing not to participate in a second trial, tenant moved to set aside the order granting a new trial, or in the alternative, for dismissal of his action in order to perfect this appeal. See Chartier v. Winslow Crane Service Co., 142 Colo. 294, 350 P.2d 1044. The trial court dismissed the action, tenant appealed, and landlord cross-appealed.
The issues raised by the parties in their respective appeals are: (1) The propriety of the trial court's denial of part of landlord's motion for summary judgment; (2) the propriety of the trial court's instruction to the jury on damages; and (3) the propriety of granting the motion for new trial and the ensuing dismissal of the action. We affirm the trial court's ruling on the motion for summary judgment and on the damages instruction. We reverse the trial court's order granting a new trial.
The record reflects that Anschutz Farms Corporation executed a lease with tenant covering approximately 290 acres of farm land for a term from August 1, 1971 to August 1, 1972, for a rental of $1,200.89. Paragraph seven of the lease provided that no crops could be planted which would mature after August 1, 1972, unless written consent was first obtained from Anschutz.
Tenant took possession of the land and planted a wheat crop which 'blew out' by March 1, 1972. In April of 1972, Anschutz sold the leased property to landlord, subject to the terms of tenant's lease. In June of 1972, tenant replaced the wheat with a millet crop. This crop was 'sorry' for a time; however, the crop later received rain and was harvested by landlord in September of 1972.
Tenant filed to present action to recover the value of the millet crop, less landlord's costs of harvest. Tenant based his claim on C.R.S.1963, 58--1--5, and alleged that landlord was barred by waiver or estoppel to rely upon paragraph seven of the lease. Landlord denied the allegations of the complaint and challenged the applicability of C.R.S.1963, 58--1--5, by motion for summary judgment. The trial court ruled that tenant could not rely upon the statute because the written lease contained a definite term. However, the trial court also determined that since the facts relating to the issues of waiver and estoppel were disputed, these issues must be resolved by the jury.
I. Summary Judgment
C.R.S.1963, 58--1--5, establishes the prerequisites for the cultivation and harvest of crops even though the tenant in possession may be guilty of unlawful detention of real property as defined in C.R.S.1963, 58--1--4. During arguments on landlord's motion for summary judgment, tenant conceded that his case was based upon this statute. The trial court ruled that the statute did not apply, and landlord therefore contends that tenant's complaint should have been dismissed. We agree with the trial court that C.R.S.1963, 58--1--5, does not apply in this case because the written lease contained a specific termination date, See Koch v. Monaghan, 119 Colo. 557, 205 P.2d 652, but we also conclude that the trial court properly submitted the issues of waiver and estoppel to the jury.
Tenant was entitled to relief based upon any facts which could be proved in support of the allegations made in his complaint. Nelson v. Nelson, 31 Colo.App. 63, 497 P.2d 1284. Tenant specifically alleged in his complaint that landlord waived the requirements of paragraph seven of the lease, or, in the alternative, was estopped to rely on that provision. The fact that C.R.S.1963, 58--1--5, does not apply here because the written lease contained a specific termination date does not preclude tenant from otherwise asserting a right of recovery, since:
"The general rule that a tenant for a definite term has no right to unharvested crops maturing after the expiration of his lease may be modified by estoppel arising against the landlord claiming the 'away-going' crops. . . ." Millage v. Spahn, 115 Colo. 444, 175 P.2d 982; See also Annot., 141 A.L.R. 1240.
II. Admissibility of Evidence
Tenant testified that approximately two weeks after signing the lease he spoke with Cecil Yount, the foreman of Anschutz, regarding the limitations of the lease and what could be done if the wheat crop 'blew out.' According to tenant, Mr. Yount stated:
'Well, it's only normal farming procedure that should your wheat crop blow out, to plant a cover crop, and you go ahead and harvest it and should this land do that, we'll protect you. We'll see that you have the privilege of harvesting this crop.'
Tenant further testified that following the sale by Anschutz, he also spoke with landlord. The pertinent portions of that conversation were as follows:
'. . . (H)e asked me on this contract that I had, how I understood this section 7. I told him I didn't know exactly how it read, but in discussing it with Mr. Yount it was the understanding that if the wheat crop blew out, we would put a catch crop on it and harvest it if it did mature after August 1, which it probably would do that, and Anschutz would cover me on it. And so Edwin (landlord) mentioned that he didn't know exactly how it read, but he felt that he would get a lawyer to look it over because Anschutz's field man had told him anything after August 1 was his. And in his conversation, I think about the next thing that was said he had indicated to me that if millet was going to be planted, it should be planted right away so it wouldn't mature too long after August 1. And I told him that as far as I knew, I would start planting that day.'
As its sole basis for granting landlord's motion for new trial, the trial court determined that tenant's testimony should not have been admitted because the testimony violated the parol evidence rule, there was no consideration for the waiver which the testimony was offered to prove, and there was no evidence that landlord had knowledge of the waiver by Yount (for Anschutz), and thus landlord could not be bound by the waiver.
The quoted testimony did not violate the parol evidence rule. The parol evidence rule does not exclude testimony of conversations between the parties occurring After execution of a written agreement offered to show waiver of the terms of an agreement or estoppel to enforce certain terms. See 3 B. Jones, Evidence, s 16.10 (S. Gard 6th ed.); 9 J. Wigmore, Evidence, s 2441 (3rd ed.).
Under the circumstances present here, there was no requirement that tenant give legal consideration for the waiver. Waiver occurs when the actor is entitled to assert a particular right, knows that the right exists, and intentionally relinquishes such right. People v. Watrous, 121 Colo. 282, 215 P.2d 344. We find no requirement in Colorado cases that legal consideration is required to support a waiver. Cases in other jurisdictions are in conflict. Compare Long v. Board of Chosen Freeholders, 16 N.J.Super. 448, 84 A.2d 765, with United States Fidelity & Guaranty Co. v. Bimco Iron & Metal Corp., 464 S.W.2d 353 (Tex.).
While the doctrines of waiver and estoppel are generally distinguishable, See Cole v. Colorado Springs Co., 152 Colo. 162, 381 P.id 13, where, as here, a party waives a requirement of a contract and the other party changes his position to his injury in reasonable reliance upon that waiver, the elements of both doctrines are present. Even assuming, without deciding, that consideration is necessary to support a waiver, the elements of estoppel present here serve as a substitute for any requirement of legal consideration. See Hunter Milling Co. v. Koch, 82 F.2d 735 (10th Cir.); Macina v. Magurno, 100 So.2d 369 (Fla.).
Assuming, Arguendo, that a waiver created by a predecessor in title is not binding on his successor when the successor is unaware of the waiver, our review of the record must be conducted in a light most favorable to tenant. Gaulin v. Templin, 162 Colo. 55, 424 P.2d 377; McQueen v. Robbins, 28 Colo.App. 436, 476 P.2d 57. In the conversation between landlord and tenant, tenant specifically informed landlord that Anschutz (through Yount) had authorized a cover crop, and that Anschutz had indicated it would protect tenant relative to harvesting the cover crop. Hence, the record discloses that landlord had knowledge of the prior waiver by Anschutz.
Nor is there merit to landlord's contention that the conversation between Yount and tenant had the effect of extending the lease term and was therefore inadmissible as violating the statute of frauds, C.R.S.1963, 59--1--8 and 59--1--12. Modification of a written lease which extends the term for a period of less than one year is not covered by the statute. See Doherty v. Doe, 18 Colo. 456, 33 P. 165.
III. Damages Instruction
Landlord finally contends that the jury was improperly instructed as to the measure of damages which tenant was entitled to recover. The damages instruction informed the jury that if they found in favor of tenant, he was entitled to recover the reasonable market value of the millet less the cost of swathing, bailing, and any other cost necessary to harvest and protect the crop.
Landlord asserts that the correct measure of damages is the reasonable rental value of the land for the period that tenant was wrongfully dispossessed of the land by landlord. We disagree. Where, as here, it is contended that the landlord has wrongfully deprived a tenant of the opportunity to harvest crops on the leased premises which the tenant has planted, the tenant is entitled to recover his lost profits. See Colorado National Bank v. Ashcraft, 83 Colo. 136, 263 P. 23.
We have examined the other contentions of the parties and find them to be without merit.
The denial of the motion for summary judgment is affirmed. The order granting a new trial is reversed, and the cause is remanded with directions to the trial court to reinstate the jury's verdict and to enter judgment thereon in favor of tenant.
ENOCH and KELLY, JJ., concur.