Bowers v. Graves & Vinton Co.

• Decision Date: 07 April 1896
• Citation: 66 N.W. 931,8 S.D. 385
• Parties: BOWERS v. GRAVES & VINTON CO.
• Court: South Dakota Supreme Court

66 N.W. 931

8 S.D. 385

BOWERS v. GRAVES & VINTON CO.

Supreme Court of South Dakota

April 7, 1896

Appeal from circuit court, Brown county; A. W. Campbell, Judge.

Action on contract brought by Andrew Bowers against the Graves & Vinton Company. A motion to strike out plaintiff's claim for damages having been sustained, plaintiff appeals. Affirmed.

J. H Hauser, for appellant. J. H. Perry, for respondent.

CORSON P. J.

The plaintiff set out in his complaint a contract, from which it appears that the plaintiff agreed, for the consideration thereinafter named, "to well and faithfully till and farm, during the season of farming in the year 1894, in good and husbandlike manner, and according to the usual course of husbandry," a certain tract of land described, and the plaintiff agreed to sow and plant the said land in such crops as the defendant should direct. The plaintiff also agreed "to furnish, at his own cost and expense, all seed, and all proper and convenient tools, teams, utensils, farm implements, and machinery, and to furnish and provide all proper assistance and hired help in and about the cultivation and management of said farm." Here follow numerous provisions common in such contracts. The contract further provides that, until after the delivery thereinafter specified, "the title and possession of all the hay grain, crops, and produce on said premises shall be and remain" in the defendant. It was further agreed that said plaintiff should deliver one-fourth of all grain or other farm produce, at an elevator named, free of all cost to defendant. It was further agreed that the plaintiff might plant and cultivate 10 acres in corn, and retain the entire products under certain conditions therein named. The contract contained the further stipulations: "In consideration of the faithful and diligent performance of the foregoing stipulations by the party of the first part, the party of the second part agrees, upon the reasonable requests thereafter made, to give and deliver on said farm, the three-fourths of all grains, vegetables, and other farm produce so raised and secured upon said farm during said season." The complaint further alleges that, in the spring of 1894, the plaintiff prepared 105 acres of the said land, sowed and planted the same, and harvested and stacked 60 acres of the wheat, and alleges: "The plaintiff further shows that it was reasonably worth the sum of $4 per acre to plow and prepare, to furnish seed, machinery, and teams, and properly put in, as was done by this plaintiff, the above-described 105 acres of wheat; that it was reasonably worth the sum of $1 per acre to harvest the 60 acres of wheat above described that it was reasonably worth the sum of $6 per acre to plow and prepare the ground, and plant the corn, and cultivate the same, as was done by this plaintiff, upon the 10 acres of corn above described. The plaintiff further shows that, after the said grain was planted, and the said corn was cultivated, the defendant refused to allow this plaintiff to harvest or thresh said grain, or to gather said corn, and has refused to deliver to the plaintiff three-fourths of the wheat so raised upon said land, or any part thereof, and has refused to deliver to the plaintiff all of the corn grown upon said land, or any part thereof, and has refused to allow said plaintiff to remove any of said corn or grain, or to apply the same to his own use. The plaintiff further shows that the work so performed by this plaintiff for the defendant, and the materials furnished as hereinbefore set forth, were reasonably worth the sum of $540. Wherefore the plaintiff demands judgment against the defendant for the sum of $540, besides his disbursements and costs." The defendant moved to strike out the first paragraph above copied, relating to the value of the services per acre for plowing the same, upon the following grounds: "(1) The said portion of said complaint is irrelevant; (2) that said portion of said complaint is redundant; (3) that said portion of said complaint does not allege the correct measure of damages." This motion was granted, and from the order granting the same the plaintiff appeals.

The respondent's counsel suggests, in his brief, that the order is not an appealable one; but, as no motion was made to dismiss the appeal, we do not deem it necessary to pass upon that question, and shall assume, for the purposes of this decision, that the appeal is properly before us.

The appellant contends that, the defendant having, as alleged in the complaint, prevented him from completing his contract, he is entitled to recover of the defendant what his services were reasonably worth, and hence the allegation stricken out is a proper one in the complaint, and striking it out was error. The respondent contends that the contract does not create the relation of master and servant between the parties, and hence that the...