Gano v. Prindle

• Decision Date: 15 September 1897
• Docket Number: 133
• Citation: 6 Kan.App. 851,50 P. 110
• Parties: S. GANO v. F. R. PRINDLE
• Court: Kansas Court of Appeals

50 P. 110

6 Kan.App. 851

S. GANO v. F. R. PRINDLE

No. 133

Court of Appeals of Kansas, Southern Department, Western Division

September 15, 1897

September 15, 1897,

Error from Barton District Court. Hon. J. H. Bailey, Judge. Reversed.

Judgment reversed and case remanded.

F Vernon Russell, for plaintiff in error.

G. W Nimocks, for defendant in error.

OPINION

DENNISON P. J.

This action was begun in justice's court by F. R. Prindle to recover from S. Gano and others for the conversion of a certain quantity of wheat.

The amended bill of particulars filed by the plaintiff below alleges, and the evidence upon both sides discloses, the following state of facts: Gano leased to one Wilson a tract of land, by verbal lease, for one year, to cultivate in wheat. Prindle furnished to Wilson about one hundred bushels of seed wheat with which to sow the land leased from Gano. Gano was to have one-third of the wheat crop thrashed for the rent of the land, and Prindle was to have one-fourth of the entire crop for the seed wheat furnished. Some time in December, Wilson gave to Gano a chattel mortgage upon the total wheat crop to secure a debt which he owed to Gano, and left the country. Gano had the wheat harvested and thrashed, and then sold it to satisfy his claims. Prindle claimed the one-fourth of the wheat, demanded it from Gano, and upon his refusal to deliver the same brought this suit in the justice's court and obtained a judgment for $ 168.03 against Gano. Gano appealed to the District Court of Barton County, Kansas, and the case being tried by a jury a verdict was rendered against Gano for $ 167.60. Judgment was rendered upon the verdict, and Gano brings the case here for review.

During the trial of the case, the court gave the following instructions to the jury:

"2. You are instructed that in this case the burden of proof is upon the plaintiff to establish by a preponderance of evidence all the material allegations of his bill of particulars, among which material allegations are the following: First, that he was the owner of the wheat sued for in his bill of particulars, or some part thereof, by virtue of an agreement between him and Louis Wilson whereby they became cotenants of the land and joint owners of the wheat grown thereon; second, that the said defendant S. Gano converted the same or some part thereof to his own use and benefit, without the consent of the plaintiff third, that the wheat so converted was of some value.

"3. If you find from a preponderance of the evidence that defendant Louis Wilson, in the year 1890 rented the land described in plaintiff's bill of particulars from defendant Gano, for which he was to pay Gano one-third of the crop raised, and the balance was to belong to him, then he would be Gano's tenant, and would be the owner of two-thirds of the crop raised and Gano would be the owner of the other one-third. And if you further find from the evidence that after the renting of the said land from Gano said Wilson entered into an agreement or arrangement with plaintiff, by the terms of which the plaintiff and Wilson were to plant and cultivate the said land in wheat, each to have a share of the wheat so planted, plaintiff to have one-fourth and the said Wilson to have the remaining balance of the two-thirds, and that by virtue of such an agreement the plaintiff, as his part of such planting and cultivating, was to...