166 P. 944 | Or. | 1917
delivered the opinion of the court.
We must assume from the verdict that the jury found from the conflicting evidence that Simmons had agreed to deliver one third of the grain as rent. The assignments of error are numerous and arise out of the refusal of the court to direct a verdict for the defendants, the refusal to give certain requested instructions and the giving of other instructions. The principal assignments of error may be grouped into two classes since the defendants contend that they were entitled to a judgment (1) Because the lease created the relation of landlord and tenant and therefore the title to the wheat and right of possession was in the tenant until an actual segregation of the wheat; and (2) an undivided interest in property cannot be replevied.
The instant ease is within the respective exceptions to the two general rules mentioned. Although one of the printed briefs makes some reference to frosted wheat, the transcript of the testimony does not disclose any evidence concerning the grade or quality of the wheat, except the testimony of T. H. Moorelock, a grain buyer, who said that the grain was “No. 1 forty-fold wheat.” Simmons denied that Halsey had any interest in the wheat, and hence the latter as a tenant in common was entitled to maintain an action in replevin. All the persons who claim an interest in the wheat are parties to this action and therefore the instant litigation is to be differentiated from those cases where only one of two or more co-owners is alone attempting to recover from some third person.
Simmons insists that there was no evidence from which the jury could determine the amount of the wheat belonging to Halsey. The testimony of Moorelock to the effect that No. 1 forty-fold wheat “generally runs from two bushels to two and a quarter to the bag or one hundred and thirty to one hundred and thirty-five pounds” when supplemented by “testimony as to the number of bags of wheat and as to the weight of the bags, depending upon how the bags were filled and the condition of the wheat” was enough to justify the finding rendered in the verdict.
The rulings of the trial court conformed to the views expressed here; and the judgment is therefore affirmed.
Affirmed.