87 Minn. 304 | Minn. | 1902
This action was brought to recover the sum of $120.91 — -the proceeds of certain crops raised by plaintiffs, under the terms of a farm contract, upon land owned by defendant, and alleged to have been wrongfully converted by defendant to his own use. Plaintiffs had a verdict in the court below, and defendant appealed from an order denying his motion for a new trial.
1. Taking the points made by appellant in an orderly way, we come first to the question whether the complaint states facts sufficient to constitute a cause of action. It alleges in general terms that the parties entered into an agreement in writing (a copy was attached and made part of the complaint), 'by which plaintiffs undertook and agreed to farm and cultivate defendant’s land pursuant to the terms and conditions of the writing; that plaintiffs tilled and cultivated the same during the season of 1901 in a good,
' The contract between the parties is the ordinary farm agreement now generally in use in this state, and need not be set out in this opinion. There can be no serious question but that, under the terms and conditions of the contract between the párties, one-half of all grain and crops raised thereunder became the property of and belonged to the plaintiffs upon a full compliance by them with the terms and conditions of the agreement, conceding that prior to such performance the title remained in defendant, the landowner, as security for such performance. The complaint distinctly alleges the full performance of those conditions by plaintiffs, and shows a right in them to demand and receive their share of the crops. Defendant converted the crops into money, and is clearly liable to plaintiffs for their share; and the complaint shows a right of recovery, either as for a conversion, or as for money had and received. It is not important whether the recovery be had upon one ground or the other. Morish v. Mountain, 22 Minn. 564. Nor is i.t material, in the present state of the action, whether defendant converted the crops into money with or without the' consent of plaintiffs; if with their consent, the subsequent demand for the payment of plaintiffs’ share, and defendant’s refusal, constituted a conversion; if without - their consent, defendant’s act was wrongful, for the contract between the parties gave him no right to dispose of plaintiffs’ share, but, on the contrary, he was
2. Subsequent to the commencement of the action, plaintiff John J. Northness died, but the trial court permitted the action to proceed in the name of the surviving plaintiff, and of this defendant complains j it being urged in support of the objection that there was a defect of parties plaintiff, and that the heirs or personal representative of the deceased party should have been substituted in his stead. It was not necessary to so proceed in this case. The parties were jointly interested in the contract, were joint owners of the crops raised thereunder, and the court was justified in permitting the action to proceed in the name of the surviving joint owner. It was held in Hedderly v. Downs, 31 Minn. 183, 17 N. W. 274, that, if one of two joint parties upon the same side of a contract decease, the survivor, and he alone, can maintain an action on behalf of that side. That case is in point, and is controlling. Though there is no allegation in the complaint or direct proof that plaintiffs were copartners, it does conclusively appear from the contract itself that they were jointly concerned and interested in the contract, and the ease is brought clearly within the rule of the case just cited. It is not fatal to the complaint that plaintiffs’ ownership of the funds sought to be recovered is alleged in the present tense, for the whole pleading shows an ownership in them prior to the commencement of the action, and at the time of the alleged conversion. The case of Smith v. Force, 31 Minn. 119, 16 N. W. 704, is not, therefore, in point.
3. The defendant pleaded in defense to the action that plaintiffs failed to perform the contract, in that they neglected to cut some forty acres of meadow; and it is claimed that, because of this neglect and failure, defendant was entitled to damages to the extent of one-half of the value of the hay which should have been
The other assignments of error have all been examined, and we' find nothing on which to base an order of reversal, and the order appealed from is affirmed.