108 Ark. 36 | Ark. | 1913
(after stating the facts). The determination of the issue raised by the appeal depends upon the question whether the defendant was upon the land of the plaintiff in the capacity of tenant or employee.
Where the owner of land makes a contract with another whereby the latter is to cultivate the land and the crops produced are to be divided between the two parties in a certain proportion, the relation of landlord and tenant may or may not result. The question whether it does result is one of intention, to be determined upon a construction of the whole instrument if the contract is in writing, or from the language used by the parties and their acts in carrying out the contract if the agreement is oral. Tiffany on Landlord & Tenant, vol. 1, p. 38. To the same effect are the following: Birmingham v. Rogers, 46 Ark. 254; Tinsley v. Craige, 54 Ark. 346; Neal v. Brandon, 70 Ark. 79.
The answer alleges in substance that the defendant is in possession of the premises under and by virtue of an oral contract of rental. That under said oral contract the defendant was to remain in and have possession of the premises and the use and occupation thereof for the year 1912 for the purpose of cultivating thereon crops of cotton, corn and hay. That defendant was to furnish all the labor to make, gather and market said crops. That when said crops were gathered and marketed the same were to be divided as follows: One-half to the plaintiff and one-half to the defendant.
It might be inferred from these facts and the circumstances surrounding the parties at the time the contract was made that it was their intention to create the relation of landlord and tenant and not that of landlord and cropper or employee. A jury might infer from the allegations of the answer that the defendant was already in possession of the land; that it was the intention of the parties that he should remain in possession and cultivate certain crops of cotton, corn and hay, and should market the same. That after the crops were sold, the defendant should make a division of the proceeds by giving one-half to thb plaintiff and retaining one-half himself. In this view of the case the defendant would have the right to the possession of the land for the year 1912 and would have the whole property in the crop until he made a division. This would create the relation of landlord and tenant between the parties and would defeat the action of the plaintiff for the recovery of the land. It may be admitted that the allegations of the answer are somewhat ambiguous and uncertain but in such cases, if the inference may be drawn therefrom by a fair intendment that facts exist sufficient to constitute a ground of defense, the defect must be corrected by a motion to make more definite and certain and not by demurrer. Bush v. Cella, 52 Ark. 378; Citizens’ Bank of Mammoth Spring v. Commercial National Bank of Chicago, 107 Ark. 142, and cases cited.
It follows that the judgment must be reversed and the cause remanded for a new trial.