23 Kan. 621 | Kan. | 1880
The opinion of the court was delivered by
Replevin for 300 bushels of corn, of the value of $81, commenced by Piazzek against White, before a justice of the peace. The action was taken on appeal to the district court, where it was tried at the May term, 1879. Judgment was given for defendant White. The plaintiff brings the case here on error.
On the 30th day of January, 1877, plaintiff rented certain land to defendant for the term of three years from March 1, 1877, (except in case of a sale of the premises, when the lease was to terminate,) the defendant agreeing to cultivate all the plow-land on the premises, and to put the same into corn.
Counsel complain that the charge of the court was erroneous, and the verdict not supported by the testimony. The principal objections to the charge are, that it had no applicability to the facts proved or issues involved in the trial, .and that the direction, “that if the defendant had the option •to deliver on demand the same corn, or corn of like quality, .the plaintiff could not recover,” was erroneous. To a complete understanding. and elucidation of the case, we must \refer to the testimony. On the part of the plaintiff it was •shown that the crop was divided into loads; that defendant’s •share thus set apart was two-thirds and plaintiff’s one-third; .that plaintiff’s share was placed in his own cribs, except 300 bushels, which could not be put into them for lack of room; that this 300 bushels was placed in defendant’s cribs. The • defendant testified that 300 bushels of the corn belonging to plaintiff could not be stored in plaintiff’s cribs, for the reason that they were full; that he made an agreement with Ellinwood, the agent of plaintiff, that the 300 bushels should be ■stored in his crib, and that the same amount or quantity of ■ corn of like quality should be measured out by him, less shrinkage, whenever plaintiff'should desire him to deliver the corn; that under this agreement he stored in his crib as much as 300 bushels of corn belonging to plaintiff.
Upon this testimony, we are of the opinion that the portion of the charge of the court concerning the deposit or .storage of the corn with the defendant without any limitation or qualification was erroneous and misleading, and that the verdict of the jury cannot be sustained. The current authorities fully support the doctrine very clearly stated by Chief Justice Dixon in Young v. Miles, 20 Wis. 646. It is
The judgment of the district court will be reversed, and the case remanded for a new trial in accordance with the views herein expressed.