Dickey v. Waldo

• Decision Date: 27 October 1893
• Citation: 97 Mich. 255,56 N.W. 608
• Court: Michigan Supreme Court
• Parties: DICKEY et al. v. WALDO.

56 N.W. 608

97 Mich. 255

DICKEY et al. v. WALDO.

Supreme Court of Michigan

October 27, 1893

Error to circuit court, Allegan county; George M. Buck, Judge.

Action by John W. Dickey and Addison Lurvey against George W. Waldo for the conversion of peaches grown on defendant's land and of which plaintiffs claimed to be the owners under a contract with defendant's grantor. There was a judgment for plaintiffs, and defendant brings error. Affirmed.

The contract by which a landowner agrees to set out, and care for and cultivate for 10 years, 1,500 peach trees then in existence, which the other parties to the contract are to furnish him, and take in payment therefor one-half of the peaches grown thereon during any two of the years they may select, which the landowner agrees to allow them to harvest constitutes the parties tenants in common of the crop for the years designated.

The contract and findings referred to in the opinion are as follows:

Contract: "Articles of agreement, made this 21st day of February, A. D. 1885, between John Schultz, of the township of Saugatuck, Allegan county, Michigan, of the first part, and John W. Dickey and Addison Lurvey, of Douglas, county, and state aforesaid, of the second part witnesseth as follows: The said party of the first part is the owner of the west half of the east half of the southwest quarter of section twenty-five, township of Saugatuck aforesaid, and desiring to set out to peach trees a piece just east of his house, and running back to his east line and far enough south as the piece is suitable for peach trees, but not to exceed 1,500 trees, said first party agrees to set out the trees, and care for and cultivate the same, in a good and workmanlike manner, for the period of ten years from the date hereof, and to allow said Dickey and Lurvey, parties of the second part, to have and take one-half of the crop of peaches for any two years they may select during the aforesaid term of ten years. Said Schultz agrees that, if it shall come to his knowledge that any of the said trees are affected with the yellows, that he will immediately dig up and burn the same, root and branch. Said Dickey and Lurvey, parties of the second part, hereby agree, in consideration of the agreements hereinbefore stated, to be performed upon the part of the said Schultz, to furnish what trees may be needed to set the aforesaid piece of land, not to exceed 1,500 trees, and take as pay therefor one half of the crop of peaches for any two years they may select. It is mutually agreed that said Dickey and Lurvey shall make their selection of the year when they will take the half of the crop on or before September 15th of that year. Each party hereto are to pick and care for their own share of the fruit and are to each take as near half of the crop as may be; but at the close of the season each shall show up their total shipments for the season, and, if it be found one party has taken more than the other, the net proceeds of such surplus shall be equally divided between the parties hereto. Said Schultz agrees to draw that half of the fruit belonging to said Dickey and Lurvey to the boat landing in Douglas, or railroad depot at Fennville, as they may direct. This agreement to be binding upon the legal representatives of the parties hereto. Said second party agrees to furnish a man to help set out the trees. Witness our hands and seals. John W. Dickey. [L. S.] John Schultz. [L. S.] A. Lurvey. [L. S.] In presence of May Belle Spencer, Dyer C. Putnam.

"State of Michigan, County of Allegan, ss.: On this third day of March, A. D. 1885, before me, a notary public in and for said county, personally came John W. Dickey, Addison Lurvey, and John Schultz, to me known to be the persons whose names are subscribed to the written instrument hereon, and each acknowledged that they executed the same for the purpose therein mentioned. Dyer C. Putnam, Notary Public."

"Counsel for the respective parties above named having requested the court to make and file in said cause a finding of the facts and conclusions of law therefrom, the court, in compliance with such request, finds the facts in said cause, as proved on the trial thereof, to be as follows: (1) That on the 21st day of February, A. D. 1885, John Schultz was the owner and in possession of the west half of the east half of the southwest quarter of section twenty-five, in the township of Saugatuck, in said Allegan county, and state aforesaid. (2) That on said day above named the said John Schultz entered into a contract in writing with the said plaintiffs, which contract bore date the day and year aforesaid, and was introduced in evidence on the trial of said cause. (3) That, at the time said contract was entered into, said parcel of land described in said contract was the homestead of said John Schultz and Deborah Schultz, his wife. (4) That the plaintiffs, in the spring of 1885, furnished the peach trees required in and by the terms of said contract, and set them on the land described in said contract, and in all things performed the agreements by them to be performed, according to the terms of said contract. (5) That on or about the 23d day of April, A. D. 1887, the said John Schultz and wife conveyed the premises described in said contract to the defendant by warranty deed, with covenants of title, and against incumbrances. (6) That, before and at the time of the execution and delivery of said deed by said John Schultz and wife to said defendant, he, the said defendant, had actual notice and knowledge of the existence and terms of said contract between said Schultz and said plaintiffs, and that, before and at the time of the execution and delivery of said deed, it was agreed between said Schultz and said defendant that said defendant should pay said Schultz $1,850 for said land, instead of $2,000, the full purchase price thereof, and that, as part of the consideration for the sale of said land, said defendant should settle with said plaintiffs for their interest in the peach trees on said land; said defendant at that time supposing that said plaintiffs would take for their interest in said trees the value of said trees at the time of setting, and interest thereon. (7) That the plaintiffs duly selected the year 1891 as one of the years when they would take one-half of the crop, according to the terms of said contract; that said defendant was orally informed by said plaintiffs of such selection July 4, 1891, and that on or about August 22, 1891, the said plaintiffs gave said defendant written notice of such selection, and afterwards, and on or about the 26th day of August, 1891, offered and attempted to pick their share of the fruit, but defendant refused to permit them to do so, and denied that they had any share of the fruit; and that defendant took and converted to his own use the entire crop of fruit grown on said trees during that year. (8) That the value of the peaches grown during the year 1891 on the trees set by said plaintiffs on said land, under said contract, amounted to the sum of $1,541.07 at the time of the conversion of the same by said defendant to his own use, and that the value of one-half of the peaches, at the time when they were so converted by said defendant to his own use, was the sum of $770.53.

(9) That the value of one-half of the peaches converted to his own use by said defendant before August 22, 1891, was the sum of $160, as near as the same can be now determined. From the foregoing facts, I find the following conclusions of law: (1) The plaintiffs are entitled to maintain this action, and the contract offered in evidence between said Schultz and said plaintiffs was admissible in evidence. (2) Said contract did not convey to the plaintiffs any interest in the land described in said contract, except the right to said plaintiffs to take therefrom one-half of the crop of peaches for any two years they might select during the period of ten years from the date of said contract. (3) The homestead right of John Schultz and wife was in no way affected by said contract, and the question of the homestead right of said Schultz and wife cannot be raised by said defendant in this action. (4) Whether said contract was entitled to record or not, or whether such record would be constructive notice to defendant or not, is immaterial, inasmuch as defendant had actual notice of such contract before he purchased said land. (5) The contract relation between Schultz and plaintiffs was not technically a sale of the peaches thereafter to be grown on said trees by said Schultz to plaintiffs, but was more in the nature of a sale of the trees by plaintiffs to Schultz plaintiffs reserving, in writing, one-half of the products of said trees for any two years they might select during the period of ten...