McRill sued the plaintiffs in error, alleging that in the months of July, August, and September, 1890, McRill was the owner and in possession of three-fourths of all the grass and hay then .standing and growing on a certain quarter section of land described in the petition; that said hay was seventy-five tons and of the value of $600; that the plaintiffs in error, against the will and consent of McRill, cut down and converted to their own use all of such grass and hay. There was a verdict and judgment for McRill, from which error is prosecuted.
The assignments of error are quite numerous, but the plaintiffs in error in their brief have made a logical analysis of the case, and’ we shall follow that discussion rather than the petition in error.
The plaintiffs in error, in the first place, contend that it was incumbent upon McRill to allege and prove title or right of possession to the growing grass by virtue of an estate in the land or by virtue of some contract giving him the title or possession of the grass. This principle is undoubtedly correct, and the trial court instructed the jury in accordance therewith. But plaintiffs in error argue that the petition was insufficient to state the basis of the right of action, and they therefore moved to require McRill to make his petition more specific by stating how he acquired title, the nature of his possession, and whether actual or constructive, and certain other things which we do not understand they now insist upon. This motion was overruled. We do not think .there was any error in
Plaintiffs in error next argue that if a lease to McRill was established by the evidence it was unlawful, and for
Indeed, we have presumed that the next argument of plaintiffs in error is well founded, — that there was no evidence tending to establish a lease of the land, — and from this it follows that their following argument is also sound, to-wit: That the contract, which the evidence tends to establish, was for a share of the crops and not for any estate in the land. These two points will be considered together. The evidence in behalf of McRill tends to show that McRill had cultivated a portion of the land in 1888 and 1889. The agreement of 1888 was immaterial; but there is evidence justifying the jury in finding that the agreement in 1889 was that he was to cultivate portions of the land and retain all the crops, and that he was to put up the hay and receive three-fourths thereof and give Rapp one-fourth. The evidence is distinct that John Rapp, Sr., conducted all the business in relation to the land, and that his acts as general agent were fully authorized by John Rapp, Jr. McRill and his wife testify that in the spring of 1890 a third Rapp appeared, the nephew of John Rapp, Sr. He stated that the elder Rapp had instructed him to tell Mc
In Warner v. Abbey, 112 Mass., 355, the court said: “In construing contracts for the cultivation of Iqnd at halves it is impossible to lay down a general rule applicable to all eases, because the precise nature of the interest or title between the contracting parties must depend upon the contract itself, and very slight provisions in the contract may very materially affect the legal relations of the parties, and their consequent remedies for injuries as between themselves. In some cases, the owner of the land gives up the entire possession, in which event it is a contract in the nature of a lease, with rent payable in kind; in other cases, he continues to occupy the premises in common with the other party, or reserves to himself that right, and so a tenancy in common to that extent is created, and each is entitled to the joint possession of the crops, or the possession of the one is the possession of the other until division; or he may retain the sole possession of the land, and the other party may have the right to perform the labor and
We are quite satisfied that the contract which McRill,’s evidence tends to establish, created McRill and Rapp, Jr., tenants in common of the grass and hay. Ordinarily, trover will not lie by one tenant in common against another, but this rule ceases where there has been an ouster, as where one tenant in common has destroyed the property or where he has sold it to a stranger in denial of his co-tenant’s rights. (Burbank v. Crooker, 7 Gray [Mass.], 158; Weld v. Oliver, 21 Pick. [Mass.], 559; Carr v. Dodge, 40 N. H., 403; Fiquet v. Allison, supra.) The last two cases cited were upon contracts similar to that under consideration. Our conclusion is, therefore, that where there is a contract between the owner of land and another person, whereby
: This brings us to the question of agency. It is true, as contended by plaintiffs in error, that there is not a particle of evidence to show that the nephew, when he went to McRill, had any authority to contract for the hay. All the direct evidence is that his instructions were to employ McRill to' cultivate the tilled land, one-half in corn and one-half in millet, and that the Rapps were to have the hay. But the testimony of McRill discloses two conversations subsequently had with Rapp, Sr., whose authority is undisputed, and which, if believed, would constitute a ratification by distinctly recognizing McRill’s right to three-fourths of -the hay. There is no question of the authority of Rapp, Sr., -to delegate his authority. The boy’s errand was confessedly a special agency, and the court instructed the jury that he could only bind Rapp, Jr., to the extent of'1 the authority actually conferred; but Rapp, Sr.’s, agency was general and is undisputed, and his ratification of the boy’s act was binding upon Rapp, Jr., and would have been so had the boy’s action been entirely voluntary and without any authority. Upon all of these points, and in-fact upon every point in the case, the evidence is not only contradictory, but is conflicting to a bewildering extent. The jury was, however, justified in believing the testimony to which we have referred.
We will not notice in detail the instructions asked by plaintiffs in error and refused. They were for the most part embodied in instructions given by the court. Many of them were objectionable as narrating evidence and being argumentative upon the evidence and for infringing upon
The plaintifiPs in error complain that the court refused to submit a number of special questions to the jury. The submission of questions for special findings is within the discretion of the trial court. (Floaten v. Ferrell, 24 Neb., 347; Nebraska & Iowa Ins. Co. v. Christiensen, 29 Neb., 582.) We do not think that there was any abuse of discretion in this case. The facts were simple,' and the district court did not err in leaving them to the determination of the jury for a general verdict under appropriate instructions as to the law.
It is finally contended that the court should have dismissed the case without prejudice as to the two Rapps, for the reason that they resided in Sherman county, were there served with summons, and that the verdict was such as to bring the action within the jurisdiction of a justice of the peace. If, since the case of Pearson v. Kansas Mfg. Co., 14 Neb., 211, there remains any doubt as to the applicability of section 65 pf the Code of Civil Procedure to justices of the peace, the question is not raised in this case. The record shows a petition and then the appearance of all the defendants, first by motion and then by answer, without any objection to the jurisdiction. There is nothing to show where they were served with summons, or that their appearance was not voluntary.
Judgment affirmed.