35 A.L.R. 445 | N.D. | 1924
This is an action to recover damages for the alleged conversion of certain grain upon which plaintiff claims he had a threshing lien. The case was tried to the court without a jury, and resulted in findings and conclusions in favor of the plaintiff. Judgment was entered accordingly, and defendant has appealed.
The material facts in the case are substantially as follows:
Some time prior to 1920 the defendant, S. T. Cole, sold a certain tract of land in Ransom county in this state to one W. E. Chisman, upon the “crop payment plan.” In the fall of 1920 said Chisman rented said tract of land to the plaintiff, Mace, by an oral agreement on tbe so called “crop share plan.” By the terms of such cropping-contract it was agreed that Mace should farm the premises during the farming season of 1921, and should furnish all the necessary machinery and labor required for that purpose; that Chisman should furnish the necessary seed; that Chisman and Mace should each pay one half of the threshing bill; and should each receive one half of the grain harvested and threshed upon the premises. At the close of the farming-season of 1921, Chisman offered the plaintiff that he might farm the land for the farming season of 1922. Nothing was said as to the terms of the agreement for 1922. It appears, however, that the parlies proceeded on the theory that the relations between tbe parties should be governed by tbe terms of tbe agreement of 1921. Accordingly, Oliis
Nor a number of years prior to 1922 plaintiff was the owner, and engaged in the operation, of a threshing outfit; and in August 1922, he threshed, with such outfit, the crops on the land which he had rented from Chisman. Chisman was not present at the time of the threshing, but the defendant, Cole, was there. The grain was divided at the machine, and Cole-received the portion of the grain which, under the mopping agreement, went to Chisman. While the grain was being threshed plaintiff inquired as to who should pay that part of the threshing bill which Chisman was obligated to pay. Defendant gives the following version of-this conversation:
“We are pretty well through with the threshing; we had hauled the wheat off and were threshing oats. Emil and I had been talking at different times, and he spoke about his thresh bill, who was going to pay the thresh bill. Well, I said, I haven’t anything to do with the thresh bill, and he said he would file a lien to protect himself if he couldn’t get it, and, well, I said, Emil my share of the oats is about 125 or 150 bushels, I forget which I put it, I asked if that would protect him and give me a chance to sell what was in the elevator, and he said it would, and I said if you file a lien you can file it on what is in the granary. There was nothing said about the price or amount.
“Q. You didn’t inquire how much the thresh bill would amount to ?
“A. No, sir.
“Q. Or what rate he was charging?
“A. No, but I was under the impression he was charging $16 an hour.”
Later plaintiff filed a threshing lien upon that portion of the grain which under the cropping agreement went to Chisman. The lien was filed under §§ 6854 and 6855, Comp. Laws 1913, which read:
“Any owner or lessee of a threshing machine who threshes grain for another therewith shall, upon filing the statement provided for in the next section, have a lien upon such grain for the value of his services in threshing the same from the date of the commencement of the threshing.” (§ 6854.)
It is contended by the appellant that the plaintiff was not entitled to daim a threshing lien, and that the lien filed by him is invalid:
3. Because the plaintiff was a tenant and hence, presumptively, was the owner of the entire crop, and that when he threshed the crops he did not “thresh grain for another,” within the purview of § 6854, supra, but threshed for himself, and consequently was not entitled to a threshing lien.
2. Because under § 6855, supra, a threshing lien is allowed only where “the price agreed upon for threshing” is definitely fixed; and that a threshing lien is not allowed where a price for the threshing is not expressly agreed upon by the parties.
These contentions will be considered in the order stated.
(1) We find it unnecessary to enter into any extended discussion as to the legal terminology to be applied to the relations of the plaintiff and Chisman. It is undisputed that Chisman was possessed of the land under a contract with the defendant, Cole, by the terms of which Cole was entitled to receive each year as and for the purchase price of the land one-half of all crops raised thereon. The cropping agreement between Chisman and the plaintiff was, of course, subject to the terms of such purchase contract. And, while under the terms of the cropping agreement, Chisman was entitled to receive one-half of all crops raised on the land, such one-half in fact belonged to the defendant, Cole, under the purchase contract. The rights and liabilities of the several parties are measured by the terms of their contract. Merchants’ State Bank v. Sawyer Farmers’ Co-op. Asso. 47 N. D. 375, 14 A.L.R. 1353, 182 N. W. 264. Under the terms of the agreement between the plaintiff and Chisman, the plaintiff became the owner of one-half, and only of one-half of the grain threshed. The grain coxild not very well be divid
(2) We are, also, of the opinion that the second contention is untenable. It is admitted that the plaintiff had the right to cause the; grain to be threshed by some out. It does not follow from the mere fact that the parties did not mention a definite price for the threshing, that a price was not agreed upon. For a contract includes not only what the parties say, but also what is necessarily to be implied from what they say. Grossman v. Schenker, 206 N. Y. 466, 469, 100 N. E. 39. What is implied in an express contract is as much a part of it as what is expressed. Bishop, Contr. 2d ed. § 241; 13 C. J. 271. See also Comp. Laws 1913, §§ 5915-5917. Thus, in sales of personal property, not infrequently the agreement in terms states merely that •one party will buy or that he will sell certain goods without stating any correlative obligation on the part of the other party. Williston, Contr. p. 154, § 90. In such case, the law supplies-the promise on the part of the purchaser to pay the purchase price. If the parties have by any course of dealing made it possible for a reasonable man in their position to understand their intention as to the price, it will be fixed by this understanding based on previous course of dealing as effectually as if stated in words. Williston, Sales, § 167. But where the facts and
The judgment appealed from is affirmed.