The determination of this case requires that construction be given-to the agreement of the parties under which the plaintiff occupied and worked the defendant’s farm for the year ending with the 31st hlarch, 1883, so far as it has relation to the controversy about the wool sheared in 1883 from the sheep on the premises. And if the defendant was entitled to one-half of that wool, then the further question arises whether the recovery in this action was barred by a former adjudication between the parties. The defendant had on. the farm a flock of sheep when the plaintiff went on, the 1st of April, 1881, under the agreement then made, and the provisions of it in respect to the sheep and wool were performed pursuant to-its terms so that the plaintiff had half the increase of the sheep in 1881, and half the wool sheared from them in 1882. The sheep-remained on the place and the plaintiff continued there another year and until April, 1883, under an arrangement to work the farm, upon the same terms and conditions. That is the fair import of the-new agreement and it constituted a renewal of that first made. In the spring of 1881 the slieepi were deemed, for the purposes of the agreement, put on to the farm as sheared sheep, because the wool was then grown, and they were probably sheared about two months after the commencement of the term, and therefore the plaintiff should have none of the wool of that year, but because he was-required to take care of the sheep and lambs thereafter during the season he should have half the lambs of 1881. And because the wool to be sheared in 1882 would grow on the sheep during the term and while the plaintiff had the care of them, and while-half the feed for them would come from his interest in the products of the farm,- etc., he should have one-half the wool clipped from the sheep in 1882, but inasmuch as his term would end before the lambs of 1882 would be dropped, cared for and raised that year, he should not have any of the lambs of that season.
Those are the apparent views and intent of the parties and the-reasons for the agreement as first made. And it may, without difficulty, be assumed that in the renewal of that agreement they were governed in their understanding of it as continued by the same-motives, founded upon the same reasons, as those which gave the-terms to the agreement as first made. The plaintiff was required
These views lead to the conclusion that the interpretation of the agreement for the second year, as claimed by the plaintiff, is the one by which the rights of the parties were governed. There was no question specifically raised by the defendant on the trial in respect to the full performance by the plaintiff and his readiness to perform the agreement on his part in those things required of him after the expiration of the term in 1883. The court was justified in the conclusion that no question in that respect was presented for consideration.
The other question may not be free from difficulty. In Jui
The plaintiff’s alleged title was in question in that action, and his right to recover depended as well on the determination of that as on the question of conversion by the defendant of the property. And it is contended by the counsel for the defendant that the title was determined against the plaintiff in the former action. If that were so the judgment would be a bar to a recoveiy here. The judgment is necessarily general in its terms and discloses no ground upon which it was rendered and presumptively it is a determination of all the issues involved; but when it is made to appear that there was no right of recovery because the alleged cause of action had not accrued, the legitimate inference is that the plaintiff’s recovery was defeated on that ground, as for that reason he had no right te
The important question therefore is whether it appears that the first action was prematurely commenced. The wool had been taken from the sheep and was in the defendant’s possession and unsold at the time that action was commenced and tried. If the right of action for conversion depended upon a sale or destruction of the property by the defendant the action was premature.
The parties were tenants in common of the property, and ordinarily the possession of one co-tenant and his exclusion of the other from it or the refusal on his demand to deliver or sever it is not evidence of conversion. (Gilbert v. Dickerson, 7 Wend., 449; Osborn v. Schenck, 83 N. Y., 201; affirming, 18 Hun, 202.)
But the rule requiring sale or destruction may not apply when the property is in its nature severable 'in respect to quality and quantity by weight or measure, and the interests of the respective owners in common are clearly defined. In such case the refusal of one tenant in common having possession of the whole to permit his co-tenant to sever and take his share from it may support an action as for conversion. (Lobdell v. Stowell, 37 How., 88; affirmed, Id., 96; 51 N. Y., 70; Channon v. Lusk, 2 Lans., 211; Stall v. Wilbur, 77 N. Y., 158-164.)
If the fact had arisen when the first action was commenced, requisite to support the action for conversion, the judgment was a bar although the plaintiff there may have failed to ]iroduce the evidence in support of it. For the purposes of the question now under consideration it is not so important what the evidence was in .that respect on the trial of that action, as it is to ascertain whether the alleged right of action had then accrued by any act or adequate words of the defendant which would sustain the allegation of con version by him.
This proposition may present two questions: 1. Was the character of the property such that it was definitely severable, in specie, by weight, or measure, so as to give equality in quantity, value and quality, to the parties in severalty ? 2. And if that be so, had anything occurred prior to the first action which constituted conversion or evidence in support of it ? It does not appear that the wool of these sheep was all of one grade; that the fleeces were of equal
The exception to the rule that an action for conversion will not lie in favor of one tenant in common against his co-tenant unless the property is lost or destroyed (which includes a sale by the latter) is limited to “property readily divisible and commonly divided by weight, tale or measure, into portions absolutely alike in quality and value.” (Channon v. Lusk, 2 Lans., 213.)
To maintain such an action, not supported by the rule, the burden is with the plaintiff to establish the fact that it is within the exception, and for the purpose of making the former action and judgment a bar, the defendant is required to make it appear that the support of that action did not depend upon the loss, destruction or sale of the property.
This is matter of proof, not of legal presumption. Absolute accuracy of partition of the several kinds of grain in bulk may respectively be made by weight or measure, because it is assumed that all portions of each are nndistinguishable in quality or value. (Kimberly v. Patchin, 19 N. Y., 330.) And the same rule may be applied to money having a like standard of value. But it is difficult to see how it can be extended to the wool taken from a flock of sheep, unless it appear that the several fleeces correspond completely in grade, quality, condition and value. It is a well-advised fact of common understanding that there are various grades of wool, and that' the value is dependent on that and upon the condition of wool of the same grade. And it cannot be assumed that it is practicable to divide each fleece into two parts without prejudice to its market value.
It seems to follow that the conclusion that the property in question was such as to come within the exception to the rule before mentioned is not permitted by the evidence. And that as no sale by the defendant of the wool had been made at the time of the first
If the views thus given are correct the question raised upon the exceptions taken to the admission of the evidence of the justice, before whom the trial of the first action was had, of the ground upon which his determination and judgment were founded, becomes unimportant in relation to the result of the trial of this action. "While it is necessarily legitimate to ascertain by oral evidence the .grounds on which a decision and judgment of a court are rendered when the importance of the question arises, it has been held that the fact must be obtained from what took place on the trial by .reference to the evidence presented there for consideration, and that it is not competent for the justice who rendered the judgment to testify in general terms upon what ground he did or did not reach his determination. (Agan v. Hey, 30 Hun, 591.) From what has already been said it follows that none of the defendant’s exceptions were well taken, and the case seems to have been properly disposed of on the merits, and as the apparent rights of the parties iairly required.
The judgment and order should he affirmed.
-Judgment and order affirmed.