This action was brought by plaintiff to recover the value of some oats which he claims to have sold the defendant. Trial was had before a jury, and its verdict being in favor of the plaintiff and judgment having been rendered in accordance therewith, the defendant moved for a new trial, which motion was denied. It then appealed to this court from such judgment and order denying a new trial.
There are numerous assignments of error, but the only ones which we consider of such importance as to warrant our attention, go to the question of the title to the oats at the time of the alleged sale. It appears that plaintiff was the lessee of one Fillenwarth, and that he had worked said Fillenwarth’s land for the season of 1908, under a contract of the nature involved in the case of Consolidate Land & Irrigation Co. v. Hawley, 7 S. D, 229, 63 N. W. 904, being a lease or contract under which it is covenanted and agreed that the title of all crops raised shall remain in the lessor until division thereof made by such lessor which division the lessee is not entitled to until after full performance of conditions on his part, together with full payments of any claims the lessor may hold against him. Such contract also providing that the lessor may take and hold enough of the crops, that would upon division belong to th.e lessee, to repay all advances made by lessor to lessee and all indebtedness due from lessee to lessor. After full performance on the part of lessee and payment for all advances and indebtedness, the lessor was bound, upon reasonable request, to deliver one-half the grains raised under such contract to the lessee. When plaintiff rested his case in chief the defense moved for a directed verdict, which motion was denied, and this ruling is assigned as error. Such motion for directed verdict was based upon the grounds that no sale to defendant company had been proven; that the evidence showed the ownership of the oats to be in Fillenwarth; and that he had never transferred the title of plaintiff’s share to him. We think the first ground above stated needs no discussion. A>s to the second ground, defendant has cited the Hawley Case, supra, as well as other authorities as. to' what things are necessary to
After the court refused the above motion to direct verdict, the defendant introduced evidence which it claimed shows that there was in fact - no such division and delivery as would carry with it the title to the grain, and for that reason contends that the verdict of the jury was not sustained by the evidence. The trial court gave to the jury full instructions, which instructions were in no manner excepted to by the appellant, and therefore under the uniform holding of this and other courts, for the purpose of this appeal such instructions become the law of the case, and this regardless of whether such instructions would be sustained if the same had been excepted to. In considering whether or nor the evidence was sufficient to sustain the verdict, it is only necessary to determine whether it was sufficient under the instructions given. These instructions, -so far as material to the question now before us, -to-wit, as to whether or not title to the oats in question had passed to the plaintiff were in words as follows: “In other words, under the terms of the contract between this plaintiff and Mr. Fillenwarth for the land on which the oats in question were raised, Mr. Fillenwarth was the owner of all the grain raised until a division and delivery of the tenant’s share were made to him of such grain and the tenant’s share delivered to him. This was their contract they were at liberty to make; then, if you find from all the evidence in the case that the landlord did not
The judgment of the trial court and order denying a new trial are affirmed.