72 Cal. 356 | Cal. | 1887
This is an action to recover certain wheat or its value. The sheriff took possession of the property under the statute, and delivered it to plaintiff. Defendant answered, denying plaintiff’s right to the wheat, averred ownership in himself, and claimed a return of the property or its value. The case was tried without a jury, and the court found in favor of defendant, and gave liim judgment for the return of 4,360 sacks of wheat, or $7,935.20, found to be its value. Plaintiff appealed from the judgment and from an order denying a new trial.
The litigation arose out of a long written contract between the parties about the farming of certain lands belonging to plaintiff. The contract is formally divided'
During the first year of the term, defendant failed to perform some parts of his contract. The main failures relied on by plaintiff are,—1. That he failed to pay a small part of the assessments due on the water stock; and 2. That a part of the land was not cultivated, or at least was not cultivated in a " skillful and thorough manner.” And plaintiff assumed that on account of these breaches of the contract defendant forfeited, or rather never acquired any interest in, the wheat which he raised on the lands. Upon this theory, after defendant had harvested, .thrashed, and sacked the wheat raised that year, and delivered one fifth to plaintiff, and had hauled the other four fifths to a warehouse as his own, she commenced this action and took possession of it all.
The main question to be determined in the case is, whether the covenants of articles 7 and 8 of the contract are independent covenants, or whether all the covenants are mutual and dependent. The parts of the contract which respondent failed to comply with, as above stated, are not contained in said articles 7 and 8. Article 7 provides that all ¡the wheat and corn .shall be the prop
It seems to us clear that the provisions of article 7 and 8 are independent covenants; and that upon a full compliance with them, respondent became the owner of four fifths of the wheat. Of course, if respondent violated any of his covenants not contained in said two articles, appellant has her remedy in an action to recover whatever damages she has sustained by such violation.
There is nothing in the point that appellant did not “ deliver ” the wheat in contest to respondent. 'Respond»
Judgment and order affirmed.
Thornton, J., and Sharpstein, J., concurred.
Hearing in Bank denied.