73 Neb. 242 | Neb. | 1905
This is an action in replevin brought in the district court for Sarpy county by James C. Robinson against Ed. Stricklin to recover possession of a quantity of corn grown by the defendant on land in Sarpy county under a contract ivith the plaintiff. For convenience the parties
“Seed Contract.
“This agreement, between Ed. Stricklin, of Gretna, Neb., party of the first part, and J. O. Robinson, of Waterloo, Nebraska, party of the second part, Witnesseth: That the said party of the first part has borrowed and may hereafter borrow, of said party of the second part, the planting stock seeds required to plant the acreage of seeds and corn described below, and agrees to plant same in proper season, and to cultivate in a workmanlike manner; and also agrees to deliver to said party of the second part, at his seed house in Waterloo, Nebraska, the entire merchantable increase thereof, on or before the dates specified below. The party of the first part further agrees, that the said seeds and corn shall be delivered in a bright, well cured, marketable condition, the seeds to retain their natural color, and the corn to be free from impure, rotten or bad kernels.
“It is further agreed that if either seed or corn are not delivered in a merchantable condition as specified above, the party of the second part can at once have same put in a proper condition, the expense of same to be deducted from the proceeds of the crop, or at the option of the party of the second part, any part or all of such unmarketable crop can be rejected, both seeds and corn to have germinating qualities, which shall test at least eighty-five per cent. The party of the first part agrees that if, for any reason, the planting stock fails to grow, or insects or elements destroy the plants, he will at once notify the party of the second part, and if in the planting season, he will at once replant, at the direction of the party of the second part.
“The party of the first part furthermore agrees that all right, title, and interest in and to said seed and corn crops in all conditions is, and shall remain in said party of the second part, and authorizes said party of the second part,*244 if said seed and corn crops are not delivered as agreed above, to enter upon the premises wherever the same may be, and take immediate possession thereof.
“The party of the first part further agrees that no mortgage, bill of sale, or other lien shall be placed on said seed or corn crops, except as may be provided for by special agreements as appears on this contract.
“Upon fulfilment of the above named stipulations by the party of the first part, the party of the second part agrees to pay in cash (after satisfactory tests) to said party of the first part, for his labor and service in planting and attending and delivering said seed and corn crops at the rate per pound or per bushel specified below and in this agreement.
“Said party of the first part also agrees to notify the party of the second part, at least once in two weeks, either in person or by letter, of condition of growth of said seed and corn crops.
Acres. Pounds. Stock. Variety. Crop. Date of Price.
No. No. Delivery.
20 Sweet corn, Stowell’s evergreen, sorted, not hand picked Jan. 1, 1904, $1.15 per 100 pounds.
Sweet corn. Jan. 1, 190 Per 100 pounds.
45 Field corn, Mercer’s Flint 3062 Jan. 1, 1904, 60c per bus. 56 pounds..............
......March 12, 1903. 190 (Signed) Ed. Stricklin.
“Waterloo, Neb. Mar. 12, 1903, 190
“(Signed) J. C. Robinson.”
The action is replevin, hence the plaintiff in order to recover, must have been the owner of the property at the time the action was begun. He bases his title to the property upon the terms of the contract, arguing, first, that the seed from which the corn grew was the property of the plaintiff; second, that the defendant was the owner or lessee of the land on which the corn grew; third, that un
On the other hand the defendant contends: First, ad-mitting for the sake of the argument, that the contract is a valid one, it is only executory in its character, and title would not pass from the defendant to the plaintiff to the corn grown until some further act had been performed in relation to the same; second, that the contract is void for the reason that no sale can be made of property not in existence.
The contract recites that the defendant has borrowed seeds to plant a certain acreage of corn. That he agrees to plant and cultivate the same properly, and deliver to the plaintiff at his seed house at Waterloo, Nebraska, “the entire merchantable increase” thereof on or before the date specified. That the corn should be delivered in a bright, well cured, marketable condition, free from impure, rotten or bad kernels. That if the corn is not in proper condition the plaintiff can at once have the same put in proper condition at the defendant’s expense, or the plaintiff may reject all or any part of such unmarketable crop. That the com is to have germinating qualities which shall test at least eight-five per cent. The plaintiff agrees to pay in cash, “after satisfactory tests,” to defendant for his “labor and service in planting and attending and delivering said com crop” at the rates specified in the contract.
It will be observed that no specific land upon which the crop was to be grown is mentioned in the contract. That while the defendant was bound by the contract to plant a certain acreage of corn, to cultivate it and to “deliver the
The general rule is that, where anything remains to be done by either or both parties to a contract of sale, before delivery, either to determine the identity of the thing sold, the quantity, or the price, the contract, until such things are done, is executory and the title does not vest in the purchaser. Holmes v. Bailey, 16 Neb. 300.
It is true that the contract recites, and the plaintiff argues, that the payment to the defendant is to be made for his labor and services in planting and attending the crops, but since the evidence shows the plaintiff did not furnish the land upon which the crop was to be grown, and that it was the intention of the parties that it was to be grown upon land leased by the defendant, the contract failed to recite the truth. He was to be paid not for labor alone, but for that which embodies both labor and the energy of the soil and elements, a certain portion of the
In the case of Brown v. Neilson, 61 Neb. 765, 54 L. R. A. 328, a full and exhaustive discussion is made by Judge Holcomb of the question as to whether a lien may be created upon property not in existence by the terms of a lease which apparently in terms granted such lien. All
A reexamination of the cases upon this point would be fruitless. We are satisfied with the principles thus laid down which have been the rule of this court ever since Lanphere v. Lowe, 3 Neb. 131, decided in 1873. The contract in the instant case attempted to give the plaintiff title to corn which was not in existence either actually or potentially and which after it was grown required to be separated and distinguished froin the entire crop before the vendee could ascertain that portion which he was entitled to receive and pay for.
We recommend that the judgment of the district court be affirmed.
By the Court: For the reasons stated in the foregoing opinion, the judgment of the district court is
Affirmed.