72 Mo. 307 | Mo. | 1880
This is a suit by Stegman against Berry-hill, to recover the value of his share of a crop of fruit, grown on defendant’s premises, which was gathered and sold by defendant, who received the proceeds and refused, as plaintiff alleges, to account to him for his share. By the terms of a lease from defendant to plaintiff, the latter was to attend to the orchard, gather and take care of the fruit, etc., plaintiff to have ten per cent of the proceeds of sale of peaches, and one-third of the apples each year, payable when the same should be sold. It is alleged in the
The evidence adduced by each party tended to establish the allegations in his pleading, and the court, of its own motion, gave the following instruction to the jury : “If you find from the evidence that defendant agreed to let plaintiff’ have one-third of the apples and one-tenth of the peach crop that should grow on defendant’s farm, and that plaintiff' was to work and give his labor, and the labor of his wife and boys, to the farm and orchard of defendant, and in and about the gathering and marketing of the crop, and you find that the plaintiff performed his part of the contract, and you further find that plaintiff has not re
Other instructions were given at the request of the. parties, but it is unnecessary to consider them, inasmuch as for giving that of its own motion by the court, the judgment must be reversed, and the reasons for this determination will indicate what, in our opinion, is the law governing the case. The defendant alleged that, by the terms of the contract, the plaintiff' was to furnish boxes and pick and box, or pack the peaches, and that having failed to do so, defendant was compelled, in order to save the crop, to perform that work for him, and yet the court tells the jury that the expense of that work should be deducted from the defendant’s portion of the proceeds of the sale of the crop. This is manifestly erroneous. If it was work to be performed by plaintiff’ which he neglected or refused to do, the expenses of having it done should be borne by him, and not by the defendant. This is so clear that we doubted whether appellant’s attorney had not made a mistake in copying the instruction from the transcript, but we find he has literally copied it.
It may be that it is a mistake of the clerk, but as we are bound to accept the transcript as correct in every par