
    VAUGHN v. GARDNER.
    No. 20803.
    Opinion Filed Oct. 20, 1931.
    R. W. Higgins, for plaintiff in error.
    I. P. Keith, for defendant in error.
   McNEILL, J.

This 'is an appeal from the district court of Pittsburg county. The parties will be referred to as they appeared in 'the trail court, Robert Vaughn, plaintiff in, error, as defendant, and Cleve Gardner, defendant in error, as plaintiff.

Plaintiff commenced his action in the district court of said county to recover Lis share of the crop raised by Mm, on land owned by defendant for the year 1928, under a verbal contract. One hundred and twenty-five acres of the farm were put in cotton and 29 acres in corn. Plaintiff was to do all the work and defendant to furnish everything, including groceries, teams, tools, and extra help. The crop was to be divided, half and half, but out of plaintiff’s half, plaintiff was to pay for the groceries advanced and for extra help. It appears from the record that, on July 4, 1928, plaintiff had finished the third plowing of 125 acres of cotton, and that the 29 acres of corn had already been “laid by,” that is, finished. On the morning of July 5th plaintiff was without any groceries, borrowed enough flour from defendant for his breakfast, and was preparing to go to Kiowa to get some groceries. A controversy arose between plaintiff and defendant as to whether the cotton needed plowing or chopping. Arising out of tMs controversy, it appears that defendant told plaintiff he could either “come, take the team at once and plow or get out and stay out.” Plaintiff states that he did not want to be hurt and obeyed the defendant and left. The evidence shows that plaintiff is a poor, ignorant full-blood Indian. The record also shows that defendant took charge of the crop, gathered 550 bushels of corn, and picked 50 bales of cotton, which were sold for $4,470. Estimating the corn at 50 cents per bushel, or $275, the crop had a total value of $5,045.80, one-half of which amounts to- $2,522.90. After deducting- all expenses, of groceries furnished plaintiff, gathering corn, and picking cotton, there was a net balance in the sum of $756.63, and plaintiff contends he was entitled to one-half of said net balance. The verdict -of the jury was in favor of the plaintiff for $300.

Counsel for defendant rely on two specifications of error as follows:

“(1) That the court erred in permitting evidence to be introduced on material evidence not pleaded.
“(2) In overruling the demurrer of'defendant at the close of the evidence and in refusing to direct a verdict in favor of this defendant.”

An examination of this record shows that plaintiff alleged in his petition that, by reason of the fact that there were no groceries for the family, plaintiff was preparing to go to Kiowa to get groceries for the family in order that they might continue at the work of farming; that about the time he was ready to go for his groceries, said defendant came to Ms house and demanded that plaintiff go to the field to work; that plaintiff advised the defendant that he was entirely out of supplies, without anything to eat, that the family had nothing for dinner, nothing for supper, and that as soon as he returned from Kiowa with some groceries, he would continue to work; that defendant advised plaintiff, if he left for groceries, that said defendant would take charge of the crop and would not let plaintiff have anything to do with said crop, and notified plaintiff to stay off said premises; that' defendant immediately took charge of said crop; that defendant continued to exclude plaintiff from entering said premises, and forbade him from having anything to do with his crop thereafter; that defendant refused to furnish plaintiff with a team, farm implements, and any further supplies; that defendant took complete charge and control of said crop, finished the cultivation of said cotton, gathered the corn and picked the cotton, all in violation of the terms and conditions of their rental contract.

Plaintiff’s 'evidence in part is as follows:

“Mr. Keith: — Tell the court and jury all the conversation you had with Mr. Vaughn relative to your work? A. Well, he just wanted me to plow that morning, the 5th of July, you know, and I had worked all day on the 4th, and anyway it didn’t need plowing and I wanted to get some groceries, and I told him what I am going to do to-day, T am going 'in to get groceries to eat,’ and he said, T want you to plow,’ and I said, ‘Robert, there is not a bit of use to plow,’ ánd he said, T will go i-n and plow and work the crop myself, to suit myself,’ and I never said any more to him, we got mad and I just let Mm alone then. Q. He was out of humor, was he? A. Uh? Q. He got mad, did he? A. He talked like it. Q. You thought he was mad? A. Yes, and I went on and I went in to Kiowa and I seen him in his ear M the street hiring hands to take them over to plow, I went and told Doc Harris down there and I said to him ‘Do you think — ’ * * * Q. What did you do when you got over there? A. Well, I went where they were plowing and when we got out of the car and she stopped me.- — ■ Q. Who stopped you? A. Robert, and he said ‘Do you want to plow after dinner, and if you ain’t, get out of this field and stay out,’ I told Buck it looked like she already got possession and I said, ‘Let’s look at the crop.’ Q. When Mr. Vaughn made that statement to you, did he seem to be in a good humor or not? A. Np, don’t like he was in a good humor.”

There was no material departure from the pleadings in this case, and defendant did not plead surprise, and asked for no continuance. At the close of plaintiff’s evidence, plaintiff moved the court for permission to amend his amended petition so as to conform to the evidence dr proof, and said motion was sustained by tbe court. Tbe contention of defendant on bis first specification of error is without merit.

Counsel for defendant contends, under bis second specification of error, that tbe court erred in not sustaining a demurrer to tbe evidence, and in refusing to instruct a verdict in favor of tbe defendant for tbe reason that there was no legal eviction.

Counsel for plaintiff contends that there was a constructive eviction, and that this was a question for tbe jury, and that no instruction was requested on this question and none was given.

In the case of New State Brewing Ass’n v. Miller, 43 Okla. 183, 141 P. 1175, this court stated:

“It is well settled that whether there has been a constructive eviction depends upon the facts and Circumstances of each particular case, and is a question of fact for tbe determination of tbe jury. Rice v. Dudley, 65 Ala. 68; Warren v. Wagner, 75 Ala. 188, 51 Am. Rep. 446; Hayner v. Smith, 63 Ill. 430, 14 Am. Rep. 124; Lynch v. Baldwin, 69 Ill. 210; Talbott v. English, 196 Ind. 299, 59 N. E. 857; Hall v. Irvin, 78 App. Div. 107, 79 N. Y. Supp. 614. Under tbe liberal rule in this jurisdiction, we think there was sufficient evidence to take tbe ease to tbe jury on tbe question of constructive eviction.”

In reference to tbe evidence on tbe question of eviction, tbe plaintiff testified, in part, as follows:

“Q. Who stopped you? A. Robert, and be said, ‘Do you want to plow after dinner, and if you ain’t, get out of this field and stay out.’ I told Buck it looked to me. likes be already got possession. * * * Q. And you and him couldn’t agree on that? A. No, sir; be wanted me to go ahead right then and plow, and I said, T am going to Kiowa and get some groceries.’ Saturday, then, I told that boy of mine, ‘you go and tell Robert if be want to buy tbe crop,’ and that boy of mine said, ‘Robert Yaughn said be bad possession of my crop. He took possession and throwed me out without a penny and no place to go.’ Q. What did you do then? A. I never do anything, I moved. Q. Why did you move? A. I didn’t want no trouble. Q. Were you afraid of him? A. No, I ain’t afraid, but I didn’t want to be hurt. Q. You thought you would have trouble if you stayed? A. Yes. Q. And that is tbe reason you left? A. Yes. Q. What condition was tbe crop in as to growth? A. Well, tbe cotton was in pretty good shape. * * * Q. Did you quit on account of the difference between you and Mr. Vaughn? A. Quit because she told me to stay out and I have my idea when a man tells you to stay out, be don’t mean to come back. This is my idea. I don’t know anything about it but that is my idea. Q. Did you go back on the place anymore after that, to do any more work on tbe place? A. No, sir. Q. You left? A. I left.”

Tbe question of constructive eviction in this case was a question of fact for tbe determination of tbe jury, and tbe jury found these issues in favor of tbe plaintiff. In other words, tbe jury found that tbe acts of the defendant were such that tbe plaintiff was justified in relinquishing possession of tbe premises by reason of tbe interference of this possession and enjoyment of tbe premises on behalf of tbe defendant.

Counsel for defendant also urge that tbe court erred in not sustaining a demurrer to tbe evidence and in refusing to instruct the jury to return a verdict for tbe defendant, for the reason that all parties in interest bad not been joined, contending that defendant bad made a contract with plaintiff and with Jim Reading. It was tbe theory of plaintiff that Jim Reading was a necessary party under section 220, C. O. S. 1921, which provides as follows:

“All interested to be joined. All of tbe parties' to an action, those whoi are upited in interest must be joined.” * * *

Tbe evidence indicates that tbe plaintiff made his contract for renting tbe land with the defendant, and that Jim Reading bad made arrangements with tbe plaintiff to assist him in farming tbe land, and made arrangements wherein plaintiff and Jim Reading were to divide tbe crop between them after paying for tbe groceries and expenses. Tbe evidence shows that Jim Reading, after working under these arrangements for a short time, quit, and tbe plaintiff was required to take bis boy out of school to assist him in tbe care of tbe crop. Jim Reading quit working for plaintiff prior to planting tbe crop, but bad assisted in plowing the land. Jim Reading was a witness on behalf of defendant and be stated as follows :

“Q. Do you remember about how much of tbe crop was done when you quit? A. Well, we had about half of it broke, I guess; may be a little over. Q. And you left tbe crop? A. I quit. Q. And when you left, what did you do with your interest in tbe crop? A. I turned it over to him. Q. Turned it over to Cleve? A. Yes, both of them,- I just walked off and left it. * * * Q. You have never been paid? A. No, didn’t want nothing.

Jim Reading, by bis testimony, has disclaimed any interest in tbe crop.

No objections were made to tbe instructions of the court to the jury. The jury was fully advised as to the issues, and found from the faclts and circumstances in the case that the plaintiff was entitled to recover in this case. The trial court approved this verdict, and we find no reversible error in the record. The judgment of the trial court is affirmed.

LESTER, O. J., and GLARE, V. O. J., and SWINDALL, ANDREWS, and KORNEGAY, JJ., concur. RILEY, HEENER, and CULLISON, JJ., absent.

Note. — See under (1) annotation, in 5 L. R. A. (N. S.) 855; 16 R. O. L. 686; R O. L. Perm. Supp. p. 4124; R. G. L. Poolret Part, title “Landlord and Tenant,” § 171.  