113 Kan. 608 | Kan. | 1923
The opinion of the court was delivered by
This was an action for'the conversion of a certain share of a crop of wheat. The defendant prevailed and plaintiff appeals.
In the fall of 1918, Joseph Safar, the owner of a tract of land, leased it to Wesley B. Kasha upon which wheat was to be grown, the terms of the lease being that Safar, the landlord, was to furnish the seed, pay one-half of the cost of threshing the crop, and receive as a rental one-half of the wheat which defendant was to deliver to
A demurrer to plaintiff’s evidence was sustained by the court, and it is said that the decision was placed on the ground that plaintiff had not paid nor offered to pay the threshing bill when the demand for the wheat was made. It is also said in behalf of the defendant that he was not required to make a division of the wheat until the threshing was completed and the amount of the expense was known and that plainntiff was therefore not in a position to maintain an action for conversion.
On behalf of the defendant it is contended that the action of conversion does not lie unless there is a tortious detention of the property from the owner or the withholding of it under a claim of title inconsistent with that of the owner, and that therefore the refusal to deliver to plaintiff his share could not be regarded as wrongful until the crop was completely threshed, and plaintiff had paid or tendered payment of his share of the threshing expense.
There is little, if any, dispute as to what the law regards as a