13 S.E. 173 | N.C. | 1891
His Honor refused to give instructions asked, and charged the jury as follows:
"That the contract between plaintiffs Howland and B. T. Webb Co., was not a copartnership contract, but was a contract of rental of the property of plaintiffs for one-fourth of the product of the factory. That if the plaintiffs were in possession of the property in (568) controversy, under the contract introduced in evidence, the same having been delivered to them, and defendant purchased it and took it away, then, whether said property (scrap and oil) was divided or not, the plaintiffs are entitled to recover, that being the effect of the contract." *398
The defendant requested the court, among other prayers, to give the following instruction:
"4. If said Benjamin T. Webb was the lessee of plaintiff of `The Steep Point Fish-Scrap and Oil Factory,' and was in possession of said factory and fish-scrap and oil therein, under an agreement to pay, as rent therefor, a portion or percentage of the profits or the gross products of scrap and oil, and the defendant Forlaw purchased from said Webb from said factory fish-scrap and oil in bulk, or which had never been divided, or setapart to plaintiffs as rent, then the plaintiffs are not entitled to recover any amount, as plaintiffs had no possession, or right of property, sufficient to maintain this action, nor any lien by statute or otherwise in the fish-scrap and oil until a division. The plaintiff's cause of action is against Benjamin T. Webb, if any one."
The defendant excepted to the instruction given, and to the refusal to charge as requested. Defendant appealed.
The other material facts are stated in the opinion of the case. By the terms of the covenant entered into between the plaintiffs Ralph Howland and L. C. Howland and B. T. Webb Co., the plaintiffs agree to "furnish" the firm "a purse seine and two purse boats, also the fish-scrap and oil works, with appurtenances, situated on Steep Point on North (569) River," while Webb Co. agreed to "deliver" to him "one-fourth of the gross product of oil and scrap of said factory, seine oil to be barreled and scrap in bulk in scrap-house, all to be in shipping order." B. T. Webb Co. further covenanted to pay all of the expenses of catching fish and that incurred in running the factory during the year, and to fill certain engagements for furnishing scrap previously made by the plaintiffs with a customer.
Before it was declared by statute (The Code, sec. 1754) that crops raised on land leased for agricultural purposes should be deemed vested in the landlord to secure the payment of his rents, his advancements and expenditures for making and saving crops, and the performance on the part of the tenant of the stipulation in the lease, the title to the whole of the crop was, in contemplation of law, vested in the tenant (even where the parties had agreed upon the payment as rent of a certain portion of the crop) until a division had been made and the share of the landlord had been set apart to him in severalty. Deaver v. Rice,
New trial.
Cited: Russell v. Hill,