Gray v. Robinson

• Decision Date: 25 January 1893
• Docket Number: Civil 330
• Citation: 4 Ariz. 24,33 P. 712
• Parties: W. T. GRAY et al., Defendants and Appellants, v. WILLIAM H. ROBINSON, Plaintiff and Appellee
• Court: Arizona Supreme Court

33 P. 712

4 Ariz. 24

W. T. GRAY et al., Defendants and Appellants, v. WILLIAM H. ROBINSON, Plaintiff and Appellee

Civil No. 330

Supreme Court of Arizona

January 25, 1893

APPEAL from a judgment of the District Court of the Third Judicial District in and for the County of Maricopa. Joseph H. Kibbey Judge.

Affirmed.

H. B Lighthizer, for Appellants.

Appellants contend that the instrument in question is a lease and chattel mortgage combined, and wholly incompetent as evidence of any title or ownership in the lessor and mortgagee Robinson, in the crops raised upon the leased premises, because said instrument was not executed, proved, and recorded as a chattel mortgage.

The form of words in a lease is of no consequence, and it is not at all necessary that the term "lease" should be used. Whatever is equivalent will be equally available, if the words assume, as in this case, the form of a license, covenant, or agreement, and the other requisites of a lease are present. Moore v. Miller, 8 Pa. St. 272.

The contract contains all the essential elements of a lease,--viz., the letting of the premises for a definite period or term and at a definite and certain rental,--and necessarily creates the relation of landlord and tenant between Robinson and Thomas, unless it be found to contain conditions which destroy such relationship. 6 Lawson's Rights, Remedies, and Practice, secs. 2801-2803; 12 Am. & Eng. Ency. of Law, pp. 976, 977.

The trial court treated this instrument as a contract of hire, or what is known as a "cropping contract," whereby Robinson hired Thomas as his servant to cultivate the land, and agreed to pay him for his services a share of the crop raised, and, as a sequence, that the ownership and possession of the crop was in Robinson, while Thomas's possession was that of a servant.

Whether the possession is that of the servant or tenant is held to be a question of fact, and a contract between a landowner and a laborer, by which the latter is to raise a crop on the land of the former, creates the relation of landlord and tenant, unless the contrary clearly appears. Birmingham v. Rogers, 46 Ark. 254; 12 Am. & Eng. Ency. of Law, p. 664.

The facts in this case show that the elements of the relation of master and servant are entirely wanting in the contract. Such relationship involves a hiring, and hiring contemplates wages, and wages are necessarily certain and determinate, and proceed from the master to the servant, instead of, as in this case from the servant to the master.

Such relationship imports an unqualified control and authority upon the part of the master over the servant.

In this contract it is expressly stated that Robinson should not have any right to be dissatisfied with the work of the socalled servant, Thomas, or "interfere with" him, so long as he should prosecute his work with ordinary diligence and perform the same in a workmanlike manner, which work, it will be observed, includes his payment of rent to the master. The terms are directly the reverse of those held by the courts to be "cropping contracts," in that the "cropper" takes no term in the land itself, has no control over the crops, and gains no property in his share thereof until the division, which is made by the landlord. See title "Cropper," 4 Am. & Eng. Ency. of Law, 887; 6 Lawson's Rights, Remedies, and Practice, p. 4572, n. 3.

Neither does this case come within the purview of the long line of decisions holding that such a contract is not a lease, and that, as to the crop raised, the owner of the land and the occupier are merely tenants in common.

Under this contract there is no division, properly speaking, of the specific crops provided for, since the setting aside of the fixed quantity of pounds of grain per acre for the landlord is in no sense a division of the crops into parts or shares; and this feature of the contract in itself settles the status of Thomas to be that of a tenant with exclusive ownership of the whole crop, until the fixed quantity due the landlord is set apart for him. Dockman v. Parker, 9 Greenl. 137, 23 Am. Dec. 547; Chicago etc. Ry. Co. v. Linard, 94 Ind. 319, 48 Am. Rep. 155; Sargent v. Courier, 66 Ill. 245; Schmitt v. Cassilius, 31 Minn. 7, 16 N.W. 453; Strain v. Gardiner, 61 Wis. 174, 21 N.W. 35.

The court erred in striking out the supplemental answer of the defendants. It is the duty of the trial court to grant amendments whenever at any stage of the trial they are necessary to the purposes of substantial justice, and this power should be liberally exercised to obtain a fair trial on the merits. Rev. Stats. Ariz., pars. 667, 689; Stringer v. Davis, 30 Cal. 318.

The fundamental law of damages is compensation for actual loss, and the court erred in excluding evidence tending to show the extent and nature of appellee's interest in the property he was seeking to recover.

The rule for the measure of damages in actions of claim and delivery or replevin, where the property claimed cannot be returned, and plaintiff takes judgment for its value, is, generally speaking, the same as in an action of trover. Washington Ice Co. v. Webster, 62 Me. 341, 16 Am. Rep. 463; Hisler v. Carr and Jesse, 34 Cal. 641.

When, as in this case, the plaintiff is successful, and a part of the property is not found by the officer and has not been delivered, it has been repeatedly held that the measure of damages is the value of such undelivered part, with interest from the time of taking. Wells on Replevin, secs. 520, 539; Booth v. Ableman, 20 Wis. 602; Dana v. Fiedler, 12 N.Y. 40, 62 Am. Dec. 130; Brizee v. Maybee, 21 Wend. 144; Buckley v. Buckley, 12 Nev. 423; Aultman v. Stickler, 21 Neb. 72, 31 N.W. 241.

And in Indiana, where the contest in replevin arose about the validity of a sale of personal property, the value thereof at time of seizure was regarded as the proper measure of damages. Walls v. Johnson, 16 Ind. 374.

Where property is taken by mistake, or under a bona fide belief of right, the defendant in trover is liable only for its value before he bestowed any labor or expense upon it, or he is allowed a deduction (as was claimed in this case) for such labor and expense, if the enhanced value is made the measure of damages, the latter rule being preferred. Pulcifer v. Page, 32 Me. 404, 54 Am. Dec. 582. Coleman's Appeal, 62 Pa. St. 523; Clowser v. Joplin Mining Co., 4 Dill. 469, note; Waters v. Stevenson, 13 Nev. 157, 29 Am. Rep. 293; Wooden Ware Co. v. United States, 106 U.S. 432, 1 S.Ct. 489.

C. F. Ainsworth, for Appellee.

If one hires a man to work his farm, and gives him a share of the produce, he is a cropper. He has no interest in the land, but receives his share as the price of his labor. The possession is still in the owner of the land, who alone can maintain trespass; nor can he distrain, for he does not maintain the relation of landlord and tenant. Adams v. McKesson, 53 Pa. St. 81, 91 Am. Dec. 183; Porter v. Chandler, 27 Minn. 301, 38 Am. Rep. 293; Wentworth v. Miller, 53 Cal. 9; Parish v. Commonwealth, 81 Va. 1; Provis v. Cheves, 9 R. I. 53, 98 Am. Dec. 367; Hammock v. Creekmore, 48 Ark. 264, 3 S.W. 180; Romero v. Dalton, 2 Ariz. 210, 11 P. 863; Fox, Baum & Co. v. McKinney, 9 Or. 493; Andrew v. Newcomb, 32 N.Y. 417; Chase v. McDonnell, 24 Ill. 237; Mercies v. Adem, 46 Ga. 583; Sentell v. Moore, 34 Ark. 687; Pender v. Pease, 32 Ark. 435.

Under the contract in question John M. Thomas and D. C. Clarahan, being mere croppers, and not having completed the contract on their part either before or after the levy of appellant's execution or up to the time of the trial, had no interest in the crop which could be subjected to the payment of their debts or rendered liable to execution against them. Brazier v. Ansley, 11 Ired. 12, 51 Am. Dec. 408; Chandler v. Thurston, 10 Pick. 205; Lewis v. Lyman, 22 Pick. 437; Provis v. Cheves, 9 R. I. 53, 98 Am. Dec. 367; Tewhy v. Wingfield, 52 Cal. 319; Wentworth v. Miller, 53 Cal. 9; Howell v. Foster, 65 Cal. 169, 3 P. 649; Esdon v. Colburn, 28 Vt. 631, 67 Am. Dec. 730.

The supplemental answer was properly stricken out by the court, for the reason that it stated no facts not known to the defendants at the time of the filing of the original answer. The allegations in the supplemental answer contradictory of the allegations in the original were properly stricken out. Slauson v. Englehart, 34 Barb. 198; Buchanan v. Comstock, 57 Barb. 582.

The right to allow amendments to any pleading is a matter of discretion with the trial judge, and no error lies from the decision, unless it clearly appears to be an abuse of discretion.

It is assigned as error that the court below allowed the plaintiff to show the value of the property in question at the time of the trial. The correct rule was applied. Colby on Replevin, sec. 941; Romaine v. Vanallen, 26 N.Y. 309; Munsgrave v. Beckendorff, 53 Pa. St. 310; Hammer v. Hathaway, 33 Cal. 117.

The appellants, being wrong-doers, no deduction should be allowed for labor bestowed upon the property. Silsbury v. McCoon, 3 N.Y. 379, 53 Am. Dec. 307, and note; Snyder v. Vaux, 2 Rawle, 433; Brown v. Sax, 7 Cow. 95; Baker v. Wheeler, 8 Wend. 505, 24 Am. Dec. 66, and note; Final v. Backus, 18 Mich. 218; Nesbit v. St. Paul Lumber Co., 21 Minn. 491; Bly v. United States, 4 Dill. C. C. 464, Fed. Cas. No. 1581; Ellis v. Wire, 33 Ind. 127, 5 Am. Rep. 189; Benjamin v. Benjamin, 15 Conn. 347, 39 Am. Dec. 384; Davis v. Early, 13 Ill. 193; Cavin v. Gleason, 105 N.Y. 256, 11 N.E. 504; Gates v. Rifle Boom Co., 70 Mich. 309, 38 N.W. 245; Busch v. Fisher, 89 Mich. 192, 50 N.W. 788.

Sloan, J.

OPINION

The facts are stated in the opinion.

SLOAN, J.--

On December 4th, William H. Robinson entered into a written contract with John W. Thomas and D. C. Clarahan, the...