Foley v. Sw. Land Co.

• Decision Date: 04 November 1896
• Citation: 94 Wis. 329,68 N.W. 994
• Parties: FOLEY v. SOUTHWESTERN LAND CO. ET AL.
• Court: Wisconsin Supreme Court

94 Wis. 329

68 N.W. 994

FOLEY

v.SOUTHWESTERN LAND CO. ET AL.

Supreme Court of Wisconsin.

Nov. 4, 1896.

Appeal from circuit court, Chippewa county; R. D. Marshall, Judge.

Action by John H. Foley against the Southwestern Land Company and others. Judgment for plaintiff. Defendants land company and A. A. Goff appeal. Affirmed.

This is an action of trespass for breaking and entering the plaintiff's close, describing it, situate in Eau Claire county, on the 10th day of July, 1890, and on divers other days, etc., and then and there, with scythes, mowers, and reapers, etc., unlawfully cutting and carrying away grass, hay, and grain of the plaintiff then standing and growing thereon, namely, flax on 2 acres of land, potatoes on 1 1/2 acres, corn growing on 22 acres, rye on 14 acres, oats on 38 acres, hay on 55 acres, of the value of $1,300, and converting the same to their own use. Defendants interposed a general denial. At the trial it was admitted that the defendants took away and harvested whatever grew on the close or farm described in the complaint, called the “Hadley Farm,” and claimed by the plaintiff to have been rented of the defendant the Southwestern Land Company, through its agent, Worth. The crops were harvested by the defendant Goff under an arrangement made between him and the company, the defendant Ellis acting as an officer of the land company. Evidence was given to the effect that the plaintiff, under an agreement or lease, took possession of the premises in the spring of 1890, plowed the ground, sowed it, planted corn, potatoes, flax, and put in all the crop, furnishing the seed, and that he finished cultivating corn about the 8th or 9th of July; that the defendants Ellis and the Southwestern Land Company then let the place to Goff, who took possession of it and of the crops, and thereafter harvested them. After considerable testimony for and on behalf of the plaintiff and the defendants as to the facts and circumstances and the value of the crops and damages, the case was submitted to the jury. The court, in its charge to the jury, submitted it to them to find whether it was agreed that the plaintiff should work the farm mentioned for the year 1890, and that a portion of the crop raised, including hay, should go to the defendant company for rent of the farm, and the balance to the plaintiff; and whether plaintiff, under such contract, entered into the possession of the farm in the spring of 1890, and worked it, to the knowledge of defendant Ellis, and the agent Worth, and without objection on their part, till some time in the summer, at which time half the crop was ready for harvest, and that then defendant Goff, acting under the directions of the defendant Ellis, an officer of the land company, entered upon the land, and took the crops, without the plaintiff's consent. That, if they were not satisfied from a preponderance of the evidence that the farm was leased to the plaintiff, and that he entered upon the same, and put in the crops under such lease, then they should find for the defendants; but that, if they were so satisfied from the evidence, they “should then proceed to determine the fair market value, according to the preponderance of the evidence,of that part of the crops which the plaintiff was entitled to under the terms of the contract or lease, as such crops were situated, standing, or being on the farm at the time the same were taken from the plaintiff, under the directions of Ellis, add thereto interest thereon from the time of such taking at the rate of six per cent. per annum up to the present time, and render a verdict for the plaintiff therefor.” The jury found a general verdict in favor of the plaintiff in the sum of $714.37. The defendants moved for a new trial, which was denied. Plaintiff had judgment on the verdict for his damages and costs, from which the defendants Goff and the Southwestern Land Company appealed. It was assigned as error: (1) That the court erred in denying the defendants' motion for a new trial, because the evidence failed to support the verdict, in that it showed that the parties were tenants in common of the crop, and the plaintiff therefore was not entitled to recover; (2) the court erred in its charge to the jury in regard to the measure of damages; (3) the damages awarded are excessive. Such other facts as are material are stated in the opinion.

W. H. Stafford and Wickham & Farr, for appellants.

Doolittle & Shoemaker and A. J. Sutherland, for respondent.

PINNEY, J. (after stating the facts).

This action was tried and submitted to the jury upon the theory that it was essential to the plaintiff's right to recover that the conventional relation of landlord and tenant existed between the plaintiff and the Southwestern Land Company, the owner of the premises, and that the plaintiff was, therefore, the owner of the crops, and not that the plaintiff was a cropper of its farm, rendering services and performing work and labor for a certain share of the crops raised, as his compensation therefor, and under which arrangement the parties would be tenants in common of the crops. There was no request on the part of the defendants that the case should be submitted to the jury under the last-mentioned aspect, and it was submitted to them to find for the plaintiff if the relation of landlord...