| Mo. Ct. App. | Feb 7, 1910
(after stating the facts). — I. At the close of the evidence in the case, the appellant tendered a peremptory instruction and asked the court to require the jury to return a verdict for him on the ground that the plaintiff had failed to make out a case. This instruction was based upon the appellant’s theory that the crop of wheat growing on the land at the time of the deed of conveyance to him carried with it the title to the wheat.
This instruction was properly refused as it was based upon an entire misconception of the law as applicable to the state of facts .in this record. Whatever opinions were formerly entertained on this point, it seems quite well-established now both in England and in this country that annual crops, crops raised by yearly labor and cultivation, or fructus industriales, are to be regarded as personal chattels, independent of and distinct from the land, capable of being sold by oral contract, and this without regard to whether the crops are growing, or, having matured, have ceased to derive any nutriment from the soil. [Garth v. Caldwell, 72 Mo. 627; Swafford v. Spratt, 93 Mo. App. 634, 67 S.W. 701" court="Mo. Ct. App." date_filed="1902-04-07" href="https://app.midpage.ai/document/swafford-v-spratt-6620396?utm_source=webapp" opinion_id="6620396">67 S. W. 701; Edwards v. Eveler, 84 Mo. App. 405" court="Mo. Ct. App." date_filed="1900-04-30" href="https://app.midpage.ai/document/edwards-v-eveler-6619680?utm_source=webapp" opinion_id="6619680">84 Mo. App. 405.]
To sustain his contention as to the law, the appellant has referred us to the case of Hayden v. Burkemper, 101 Mo. 644" court="Mo." date_filed="1890-10-15" href="https://app.midpage.ai/document/hayden-v-burkemper-8009881?utm_source=webapp" opinion_id="8009881">101 Mo. 644, 14 S. W. 767. This is a petard which hoists the contention of the appellant, and the full force and effect of the cases already cited is recognized and upheld in that opinion in these words: “These cases (referring to Garth v. Caldwell, supra, and others) show that there can be, and often is, an ownership of the growing crops in one person, while the ownership of the land is in another. These cases are wholly unlike the one in hand, and we do not see that they assert any principle inconsistent with the conclusion before
II. It is further claimed by appellant that error was committed in the refusal of the trial court to allow him to offer proper evidence. The error complained of was that he offered to prove what was the general custom of renting in the neighborhood of where the wheat in question was growing. He proposed to prov’e that it was customary for the tenant to get two-thirds and the owner of the land one-third of the crop. As the uncontradicted evidence of Turner and Johnson showed that they had an express contract as to how much each should receive of the growing crop, the offer of evidence was- wholly incompetent for any purpose in this case. There is no presumption that the parties contracted with reference tó a certain custom as they testified that their contract expressly provided what share each one should have of the crop. The evidence * rejected was irrelevant and foreign to any issue in the case.
III. The appellant assigns as error that the court improperly admitted evidence of the conversations between Johnson and Turner not in appellant’s presence as to. paying the expenses of making and harvesting the crop. Under the peculiar conditions of the contract between Turner and Johnson, which provided that Turner should have two-thirds of the crop if he should pay one-half of the expense of making and harvesting it and ■do one-half the work, the evidence was competent to show that he did comply with such contract and that he was entitled under his contract with Johnson to two-thirds of the wheat grown on the place; otherwise, it would have been impossible for respondent to have shown whether Johnson was to have one:third of the
IY. Objection is also made to the giving of instructions by the court for the respondent. Two instructions were given. The instruction for the respondent is as follows:
“The court instructs the jury that if they believe from the evidence that at the time plaintiff and defendant made their contract in regard to the crop of wheat growing on plaintiff’s farm, the plaintiff informed defendant that he only had title to one-third of said wheat, and if you believe that was all of said wheat he had title to, at the time, and that defendant agreed to take one-third of said wheat in said trade; that said wheat was in the joint possession of plaintiff and one Andrew Johnson, and that the title to said wheat in controversy was not to pass to plaintiff until he had paid for one-half of the harvesting of the same, then you will find the issues for the plaintiff.”
This instruction, although somewhat inartistically « drawn and subject to criticism, could be readily comprehended by the ordinary juror and expresses a correct principle of law as applied to the facts of the case, and no material error was committed by the court in giving it.
On behalf of the defendant (appellant), the court gave the following instruction:
“The court instructs the jury that if they find from the evidence that the wheat in question was growing on the land deeded to defendant on the 16th day of February, 1905, and that plaintiff did not reserve any part of said wheat in said deed, then, in that event, all interest that plaintiff had in said wheat passed to defendant, regardless of any oral understanding or agreement, if any, that plaintiff and defendant may have had before the deed was made and delivered.” It may be remarked that the instruction given in appellant’s behalf was in plain contradiction to the instruction given for the re
The verdict of the jury was sustained by the evidence in the case, the judgment was for the right party and should be affirmed.