Fuhrman v. Interior Warehouse Co.

• Decision Date: 14 July 1911
• Citation: 64 Wash. 159,116 P. 666
• Parties: FUHRMAN et al. v. INTERIOR WAREHOUSE CO.
• Court: Washington Supreme Court

116 P. 666

64 Wash. 159

FUHRMAN et al. v. INTERIOR WAREHOUSE CO.

Supreme Court of Washington

July 14, 1911

Department 2. Appeal from Superior Court, Klickitat County; Donald McMaster, Judge.

Action by M. P. Fuhrman and another against the Interior Warehouse Company. Judgment for plaintiffs. Defendant appeals. Modified and affirmed on condition.

F. D. Chamberlain and E. C. Ward, for appellant.

W. B Presby, for respondents.

CROW J.

Action for damages by M. P. Fuhrman and Frank L. Huston against the Interior Warehouse Company, a corporation. The complaint, in substance, alleges that the plaintiff Frank L. Huston, being the owner of tillable land in Klickitat county, granted its possession to his coplaintiff M. P. Fuhrman under a lease, by the terms of which Fuhrman agreed to pay Huston a rental of one-third of any and all crops grown thereon during the year 1909; that Fuhrman, with the intention of growing a crop of wheat hay, thoroughly plowed, cultivated, and prepared the land, and applied to defendant Interior Warehouse Company to purchase blue-stem wheat with which to seed the land; that he notified the defendant he wanted blue-stem wheat for seed that defendant, so knowing his wants, needs, and purposes sold him a variety of winter wheat known as 'forty-fold,' which Fuhrman used in seeding believing it to be blue-stem; that Fuhrman seeded the land in March and April, 1909; that forty-fold wheat is not adapted to, but is worthless for, spring sowing; that it will sprout, but will not mature or produce a crop, and that the plaintiffs without fault on their part lost their entire crop, to their damage in the sum of $1,050. To this complaint a demurrer was overruled, and the defendant answered. On trial the jury, in compliance with instructions of the trial court, divided the damages in the proportion of two-thirds and one-third, and returned a verdict in favor of Fuhrman for $420, and in favor of Huston for $210. The defendant has appealed from the final judgment entered thereon.

The demurrer was special and general; its grounds being (1) a defect of parties plaintiff, (2) improper joinder of several causes of action, and (3) insufficient facts pleaded to state a cause of action.

Appellant first assigns error on the order overruling the demurrer, and in substance contends that, as respondent Huston was the landlord of respondent Fuhrman, the alleged sale of wheat, if made to either, was made to the latter only; that no privity of contract exists between Huston and appellant; that Huston has no separate cause of action against appellant; that he and Fuhrman have no joint or common cause of action against appellant; and that they are improperly joined as parties plaintiff. The allegations of the complaint show Fuhrman was tilling the land upon an agreement to yield to Huston a specified portion of the crop raised. This made the respondents tenants in common in the crop. The weight of authority is that every contract whereby use of land is given to a party to cultivate and return to the owner a specified portion of the crop produced creates a tenancy in common in the crop, and that this is true whether the agreement between the parties is a lease or a mere cropping contract. The tendency of the courts is to hold that, whenever there is a provision in any form of contract for a specific division of crops produced, a tenancy in common arises therein. Freeman on Cotenancy and Partition (2d Ed.) § 100; Foote v. Colvin, 3 Johns (N. Y.) 216, 3 Am. Dec. 478; Putnam v. Wise, 1 Hill (N. Y.) 234, 37 Am. Dec. 309; Aiken v. Smith, 21 Vt. 172; Smyth v. Tankersley, 20 Ala. 212, 56 Am. Dec. 193; Dinehart v. Wilson, 15 Barb. (N. Y.) 595; Abernethy v. Uhlman, 52 Or. 359, 93 P. 936, 97 P. 540. In Smyth v. Tankersley, supra, the court said: 'In the case of Thompson v. Mawhinney [17 Ala. 362, 52 Am. Dec. 176] supra, it was decided by this court that a contract made with the owner of land, which the other party agreed to cultivate and to divide the products equally with him, was not technically speaking a lease, but that a tenancy in common was created in the products. In the contract under consideration, the mode of compensation adopted repels the conclusion that it could have been the intention of the parties that the land should not be cultivated, and thus assimilates its terms more closely to the contract in the case last cited. It is true the phraseology adopted is that which is usual in leases, but the substance of the agreement is to be regarded, rather than the words. Putnam v. Wise, supra. And in contracts of this description the true test seems to be that, wherever provision is made for dividing the specific products of the land, a tenancy in common results. Putnam v. Wise, supra, and authorities there cited.'

Although the appellant sold the seed wheat to Fuhrman only, the sale was for the benefit of Huston as well. He was interested in the prospective crop. A sale...