51 Neb. 728 | Neb. | 1897
The defendant in error instituted this action against plaintiffs in error to recover damages for an alleged malicious prosecution. As the result of a trial of the issues joined he obtained a verdict and judgment in the sum of f 50. The case has been removed to this court by error proceedings'.
The plaintiffs in error desired a review in this court of the action of the trial court in giving a paragraph of the charge to the jury, by which a contract in evidence was construed, and in preparing a bill of exceptions included therein the portions of the evidence in relation to said contract and no more. In settling the bill of exceptions the trial judge certified “That this, the defendant’s bill of exceptions, contains all of the testimony adduced or offered by plaintiff and defendants on the hearing of said cause, touching the contract between the defendant Sanford and the plaintiff and the other Modines, all of the objections to its admission as evidence, all of the
In the argument in the brief filed for plaintiff in error some complaint is made of paragraph No. 14 of the instructions. There was no assignment of any error to the giving of this; hence whether it was error to give it cannot be considered.
The paragraph of the instructions which is the main subject of the discussion in the brief filed is one numbered 6, given .by the court on its own motion, in the following language: “That by the terms of the contract signed by Whitfield Sanford, N. P. Modine, and plaintiff introduced in this case in evidence, that the relation of landlord and tenant was created thereby for the year 1890, and that said Whitfield Sanford, by the provisions, terms, and conditions of such lease or agreement, had a lien upon all the crops grown upon the said leased premises for his rent, or to secure the payment thereof. That a sale of the property or crops raised thereon for the year 1890 by the Modines would not be a. crime under our
“This agreement made this 8th day of February, 1889, betwen Whitfield Sanford, party of the first part, and O. E. Modine, John Modine, and L. E. Modine, parties of the second part, witnesseth: That the party of the first part does agree hereby with the parties of the second part that they shall have full permission to till and cultivate the following described land, to-wit: the southeast quai’ter of section ten (10), and all the plowed land oxx the northeast quarter of section ten (10), in township 'thirteen (13), range five (5), E., in Saunders county, in the state of Nebraska, except such portion of the prairie as the party of the first part may desire to break, so far as the same may be done in a husbandlike xnanner upon their performing the conditions of this agx*eement on their part to be performed. That the said parties of the second part covenant and agree to and with the party of the first part, that they will till, and in all respects cultivate the land above described, during the cropping season of the year 1889 in a husbandlike manner and according to the course of good axxd correct husbandry; that they will not commit any waste or damage, or suffer any to be done; that they will keep the fences and buildings situate on the said laxxd in good repair, reasoxxable wear thereof and damages by the elements excepted; that they will do, or cause to be done, all the necessary work and labor in and about the cultivation of said land; that they shall provide or fuxmish all the seed or seeds necessary to be sown or planted on said land; that they shall furnish all the implements, teams, wagons, farming tools, machinery and appliances requisite to the performance of their part of this contract; that they will do all the woxxk necessary to be done in proper season on or about the said land in order to properly care for and preserve the timber, trees, shrubs, and bushes thereon in a good and husbandlike manner. Said party of the second part agrees to carry and transport all the pro*731 ceeds and crops produced on the said land of every name, kind, and description to such place as the party of the first part shall direct in the village of Valparaiso until the party of the first part shall have received thereupon one hundred and seventy-five (175) dollars. Said party of the first part, in consideration of the party of the second part doing all the work and performing all the covenants and agreements on their part to be done and performed by the terms of this contract and the payment by the; party of the second part to him of the sum of one hundred and seventy-five (175) dollars by raising and delivering said crops as aforesaid or otherwise by January 1, 1890, agrees to bargain, sell, grant, and convey unto the parties of the second part, their heirs and assigns, all that remains of the proceeds and crops produced on the said land of every name, kind, and description; and said party of the first part agrees that the payment of the sum of money at the time it becomes due as aforesaid shall act as such performance of condition that this contract shall then operate as a bill of sale of said crops and proceeds, provided that the said parties of the second part shall have performed the other conditions of this contract by them to be performed; but in no case shall the said parties of the second part have any interest in or ownership of any part of said crops and proceeds prior to the time full payment of the money agreed by them to be paid shall have been fully paid as agreed upon. Said party of the first part agrees that said parties of the second part may occupy the buildings situate on said land during the cropping season of the year 1889, and if they perform the agreements herein on their part to be performed then the said second parties shall have the use and occupancy of said buildings until March 1st, 1890.
“In witness whereof, the parties hereto have set their hands on this 8th day of February, 1889. The meaning and intent of the foregoing contract is that the party of the first part shall hold all of said crops until he realizes*732 one hundred and seventy-five (175) dollars from the same, and that thereupon he shall turn over the balance thereof to the parties of the second part as soon as, and upon condition that, they shall have fully performed their part 'of this agreement. The parties of the second part further agree to dig a -well twelve feet deep on said land and curb the same upon condition that the party of the first part shall furnish lumber for curbing it and without further charge therefor. Settled for 1889 and for breaking done that year and the within named parties of the second part do hereby agree to work, cultivate and manage all of the two within named quarter sections of land for one year from and after March 1st, 1890, upon the same terms as stipulated in the within cropper’s contract, except that they shall make all improvements they may need and all repairs at their own expense and deliver for the use of said Sanford as therein specified crops and proceeds of said land to the amount of two hundred and thirty dollars. ($230), instead of one hundred and seventy-five dollars as per within contract. Dated this the 15th day of March, 1890.”
As we read and understand the foregoing, call it a lease or a contract as you may please, or the parties to it landlord and tenants, or the latter croppers, the agreement was that the parties who worked the land, who planted, cultivated, and harvested the crops had no interest or ownership therein until such time as there had been the division of them contemplated by the express terms of the instrument. This was their agreement directly and plainly stated. There is no claim that it was for any reason as to this stipulation void or not enforceable, and as we know of none, we must accept the contract which the parties made for themselves. We cannot, by so-called construction, supplant it by a different one which would be a contract, not of the parties, but the workmanship of the court. The owner of the land was, by the agreement, the owner of the crops until the performance of the conditions required of the other
In the case of the Consolidated Land & Irrigation Co. v. Hawley, reported in (53 N. W. Rep. [S. Dak.], 904, a contract in its terms and conditions very similar- to the one in the case at bar was in question, the action being one in which the company had made a written agreement with one Bucholtz by which he was to work or till a farm owned by the company during the farming seasons of 1891 and 1892, and it was provided in the contract what share each party should finally have of the crops, but that they should “be and belong absolutely to the company until the division provided for in the contract should be made.” It was stated, “This leaves only the question of the ownership of the grain, and this must be determined upon the legal effect of the written contract, there being no conflict as to the facts. Ordinarily the relations of these parties to each other would make them joint owners of the crop raised, but it was competent for them, by prior agreement, to determine what their relations to each other and the crops should be. There were no affirmative undertakings on the part of the appellant, but there were a number on the part of Bucholtz, of great advantage to appellant; and, presumably to secure the full discharge of these, it was agreed that The ownership, title, and possession of the crops * * * and the grain realized from the threshing shall be and belong to the party of the first part, absolutely, until a division thereof, as aforesaid, and until the said party of the first
It follows that there might have been a disposition of the crops by the defendants in error which, as to the rights of the owner, might, according to its intent, have been criminal in its nature. The construction given to the contract by the trial judge in paragraph 6 of his charge to the jury, ahd the conclusion therein drawn and stated,
Reversed and remanded.