27 Minn. 301 | Minn. | 1880
Replevin to recover 444 bushels of wheat-The wheat was grown on a farm belonging to plaintiff, under a contract between him and Henry and A. Linnemann, by which, in substance, he hired and employed them to till and.
It is clear that the contract is just what it purports to be, ■a contract of hiring, and the exclusive property in the crops was in plaintiff until he should set apart for the Linnemanns the amount they might be entitled to in payment of the balance due them at the end of the time specified. The several requests of defendant for instructions to the jury were all based on a wrong theory of this contract, the first assuming it to be a chattel mortgage, and the second and third that it •constituted the Linnemanns part-owners in the wheat. The .requests were all properly refused.
The court then instructed the jury to return a verdict for plaintiff for the value at the time and place of the taking of the wheat in controversy, it appearing from the answer and the evidence that defendant had sold it before action brought. To this instruction there was no exception, and the jury found as instructed. Had defendant desired to make the •objection that the action, being in replevin, 'cannot be maintained for recovery of the value of the property because the •defendant was not in possession of the property when it was .brought, he should have made it by exception to this instruc
Neither of the Linnemanns was agent for plaintiff in such sense as to make his declarations in respect to anything involved in this action evidence against the plaintiff. The •conversation between one of them and defendant was, therefore, properly excluded.
It was correct for the court to allow proof of where was the usual and proper market for the wheat in suit. If such usual and proper market was at a distance, the value of the wheat where taken would be controlled by the valúe at such market, and the cost of transporting there.
Order affirmed.