Robinson v. Stricklin

• Decision Date: 09 February 1905
• Docket Number: 13,692
• Citation: 102 N.W. 479,73 Neb. 242
• Parties: JAMES C. ROBINSON v. ED. STRICKLIN
• Court: Nebraska Supreme Court

102 N.W. 479

73 Neb. 242

JAMES C. ROBINSON v. ED. STRICKLIN

No. 13,692

Supreme Court of Nebraska

February 9, 1905

ERROR to the district court for Sarpy county: ABRAHAM L. SUTTON JUDGE. Affirmed.

AFFIRMED.

James H. Van Dusen, for plaintiff in error.

Nelson C. Pratt, John F. Stout and E. S. Nickerson, contra.

LETTON C. AMES and OLDHAM, CC., concur.

OPINION

LETTON, C.

This is an action in replevin brought in the district court for Sarpy county by James C. Robinson against Ed. Stricklin to recover possession of a quantity of corn grown by the defendant on land in Sarpy county under a contract with the plaintiff. For convenience the parties will be termed plaintiff and defendant, respectively, as they appeared in the court below. The contract is as follows:

"SEED CONTRACT.

"This agreement, between Ed. Stricklin, of Gretna, Neb., party of the first part, and J. C. Robinson, of Waterloo, Nebraska, party of the second part, Witnesseth: That the said party of the first part has borrowed and may hereafter borrow, of said party of the second part, the planting stock seeds required to plant the acreage of seeds and corn described below, and agrees to plant same in proper season, and to cultivate in a workmanlike manner; and also agrees to deliver to said party of the second part, at his seed house in Waterloo, Nebraska, the entire merchantable increase thereof, on or before the dates specified below. The party of the first part further agrees, that the said seeds and corn shall be delivered in a bright, well cured, marketable condition, the seeds to retain their natural color, and the corn to be free from impure, rotten or bad kernels.

"It is further agreed that if either seed or corn are not delivered in a merchantable condition as specified above, the party of the second part can at once have same put in a proper condition, the expense of same to be deducted from the proceeds of the crop, or at the option of the party of the second part, any part or all of such unmarketable crop can be rejected, both seeds and corn to have germinating qualities, which shall test at least eighty-five per cent. The party of the first part agrees that if, for any reason, the planting stock fails to grow, or insects or elements destroy the plants, he will at once notify the party of the second part, and if in the planting season, he will at once replant, at the direction of the party of the second part.

"The party of the first part furthermore agrees that all right, title, and interest in and to said seed and corn crops in all conditions is, and shall remain in said party of the second part, and authorizes said party of the second part, if said seed and corn crops are not delivered as agreed above, to enter upon the premises wherever the same may be, and take immediate possession thereof.

"The party of the first part further agrees that no mortgage, bill of sale, or other lien shall be placed on said seed or corn crops, except as may be provided for by special agreements as appears on this contract.

"Upon fulfilment of the above named stipulations by the party of the first part, the party of the second part agrees to pay in cash (after satisfactory tests) to said party of the first part, for his labor and service in planting and attending and delivering said seed and corn crops at the rate per pound or per bushel specified below and in this agreement.

"Said party of the first part also agrees to notify the party of the second part, at least once in two weeks, either in person or by letter, of condition of growth of said seed and corn crops.

Acres.

Pounds.

Stock.

Variety.

Crop.

Date of Price.

No.

No.

Delivery.

20

Sweet corn, Stowell's evergreen, sorted, not

hand picked Jan. 1, 1904, $ 1.15 per 100

pounds.

Sweet corn.Jan. 1, 190Per 100 pounds.

45

Field corn, Mercer's Flint 3062 Jan. 1,

1904, 60c per bus. 56 pounds.

March 12, 1903. 190 (Signed) ED. STRICKLIN.

"Waterloo, Neb. Mar. 12, 1903, 190

"(Signed) J. C. ROBINSON."

The action is replevin, hence the plaintiff in order to recover, must have been the owner of the property at the time the action was begun. He bases his title to the property upon the terms of the contract, arguing, first, that the seed from which the corn grew was the property of the plaintiff; second, that the defendant was the owner or lessee of the land on which the corn grew; third, that unless in law the agreement is void Robinson is the owner of the corn. In support of the contract he argues that it is not one of sale, and does not fall within the rule of contracts for things not in esse but that it falls within the rule in Sanford v. Modine, 51 Neb. 728, 71 N.W. 740, wherein it is held that a lease wherein a cropping tenant agrees that the title to crops grown shall be in the landlord until the crop is divided is valid, and that the title to such crops is in the landlord until division is made.

On the other hand the defendant contends: First, admitting for the sake of the argument, that the contract is a valid one, it is only executory in its character, and title would not pass from the defendant to the plaintiff to the corn grown until some further act had been performed in relation to the same; second, that the contract is void for the reason that no sale can be made of property not in existence.

The contract recites that the defendant has borrowed seeds to plant a certain acreage of corn. That he agrees to plant and cultivate the same properly, and deliver to the plaintiff at his seed house at Waterloo, Nebraska, "the entire merchantable increase" thereof on or before the date specified. That the corn should be delivered in a bright, well cured, marketable condition, free from impure, rotten or bad kernels. That if the corn is not in proper condition the plaintiff can at once have the same put in proper condition at the defendant's expense, or the plaintiff may reject all or any part of such unmarketable crop. That the corn is to have germinating qualities which shall test at least eight-five per cent. The plaintiff agrees to pay in cash, "after satisfactory tests," to defendant for his "labor and service in planting and attending and delivering said corn crop" at the rates specified in the contract.

It will be observed that no specific land upon which the crop was to be grown is mentioned in the contract. That while the defendant was bound by the contract to plant a certain acreage of corn, to cultivate it and to "deliver the merchantable increase" thereof, the plaintiff was not bound to accept the same or any part of it unless it had germinating qualities which should test at least eighty-five per cent., be delivered in a bright, well cured marketable condition, and be free from impure, rotten or bad kernels. It is clear that the execution of this contract on the part of the defendant required a separation of the corn crop so that that which failed to germinate to the percentage specified, and the impure, rotten or bad kernels, and those that were not bright and well cured, should be separated from the remainder of the crop, and that it was only that portion of the crop which came up to the standard established in the contract which the plaintiff could, by its terms, by...