53 Barb. 258 | N.Y. Sup. Ct. | 1868
The plaintiff derived whatever right he has to the money in controversy from John Gamel, under the agreement made by the latter with Ansel F. Conger; and the defendant, as the treasurer of the cheese factory, under the authority conferred by the same agreement, insists upon holding so much of it as is really in controversy, for Conger. By the course of business adopted at the factory, the money received from the sale of cheese was paid to the person to whom it stood credited upon the books and to whom the check or account for it was issued. But the evidence tended to show that Conger not only did not assent to the moneys in question being disposed of in that manner, but beyond that he positively dissented to such a disposition being made of them. Ho right to the moneys can be derived from the custom prevailing at the factory, so long as that custom was not assented to by Conger. Besides that, if the money belonged to Conger, a custom by which he could be deprived of it
In construing this agreemeút the principal object to be attained is to ascertain what was the intention of the parties concerning the title to the cheese that should be manufactured from the milk of the dairy, and that must be done by considering the terms they have made use of in making their agreement, the subject matter to which it' related, and the circumstances under which, they acted in making it. Agreements of this description are somewhat peculiar, and it has, therefore, been said that in the construction of them courts should not tie themselves to mere words. “ The substance should be looked at; and that, as it would be universally understood among farmers, is an agreement between owners and occupants, that the latter should come in rather as servants than tenants, each party taking an interest as common owners in the crops
The general tenor of the agreement is not that of a lease's It contains no words by which the premises and the crops are leased and demised to the occupant, and it is as entirely free from any agreement on the part of the occupant to pay anthing for their use by way of rent. Instead of containing any words by way of leasing the premises and the cows, it begins by declaring “ That the said John Gamel agrees to work the dairy and land of the said Ansel 1?. Conger on the following terms.” Then it proceeds to state, as a part of such terms, that Conger should “ furnish good dairy cows,” to the number of fifty, and that Gamel should work the land, and that it should be occupied by the cows. These cows were to be'at the risk of Gamel during the year, and if any of them should be
The compensation which the owner of the property should receive for the use of it, was to be one half the corn raised, one hundred bushels of apples from the orchard, and nine thousand six hundred pounds of cheese. There is no specific stipulation contained in the agreement that this cheese was to be manufactured from the milk given by these cows, or that any part of the milk should
Besides the scope and tenor of the agreement indicating
The fact that Conger was to receive a fixed and specified quantity does not impair his rights as owner of it. For the agreement, by providing that Camel should own only the residue, as it does in effect, excluded him from owning any part of Conger’s share. It was competent for the parties so to agree, and having done so it necessarily left Conger the owner of all that was produced by the dairy, which it was not provided that the occupant should have. In a case already mentioned, Cowen, J. remarked, that if “ the rent consisted in any amount of grain and wool, in bushels or pounds, without saying from the farm, the owners could have claimed no property in either till delivery, or at least till tender made.” (1 Hill, 244.) Very plainly intimating that if it were to come from the farm, the case would be the same as though the quantity or share to be received by the owner had been left indefinite in amount. And substantially to that effect was the ruling made in the cases of Chamberlin v. Shaw, (18 Pick. 278 ;) Lewis v. Lyman, (22 id. 437.)
The verdict in this case should be set aside and a new trial ordered, unless the plaintiff will stipulate to reduce it to the sum of $53.06, and interest thereon from the commencement of this action.
Marvin, Daniels, Davis and Barker, Justices.]