Stegman v. Berryhill

• Citation: 72 Mo. 307
• Parties: STEGMAN v. BERRYHILL, Appellant.
• Decision Date: 31 October 1880
• Court: Missouri Supreme Court

72 Mo. 307

STEGMAN

v.BERRYHILL, Appellant.

Supreme Court of Missouri.

October Term, 1880.

Appeal from Andrew Circuit Court.--HON. H. S. KELLEY, Judge.

REVERSED.

Belch & Silver with N. B. Giddings for appellant.

HENRY, J.

This is a suit by Stegman against Berryhill, to recover the value of his share of a crop of fruit, grown on defendant's premises, which was gathered and sold by defendant, who received the proceeds and refused, as plaintiff alleges, to account to him for his share. By the terms of a lease from defendant to plaintiff, the latter was to attend to the orchard, gather and take care of the fruit, etc., plaintiff to have ten per cent of the proceeds of sale of peaches, and one-third of the apples each year, payable when the same should be sold. It is alleged in the petition that in the year 1874, peaches were grown on the premises of the value of $7,000, and that plaintiff was entitled to ten per cent thereof, and that the defendant, in the spring of 1875, also had distilled from peaches of the crop of 1874, 225 gallons of peach brandy, of the value of $3.50 per gallon, and that plaintiff is entitled to ten per cent thereof, $78.75. He also claimed $42.73 for his share of apples grown on said farm. Defendant's answer alleges that, by the terms of the lease, plaintiff was to gather and take good care of the crop, and to make boxes, pick and pack, or box all the peaches, and deliver them, in good condition, at the railroad depot at Boston, in Andrew county, for which last service he was to receive $400, if the sale of the peaches amounted to $4,000, and $40 on each $1,000 in excess of that amount; admits that defendant received, for peaches and brandy sold $7,300, and that plaintiff, if he had complied with his contract, would have been entitled to $520; but alleges that plaintiff failed to comply with his contract, in that he failed to make the boxes, and failed to pick and pack or box the peaches, and to deliver them at the depot, all of which defendant was compelled to do, at great expense, which he claims plaintiff should be charged with. Other claims are made by plaintiff, and set-offs and recoupments insisted upon by defendant, but we have stated so much of the pleadings as present the only important question for our determination.

The evidence adduced by each party tended to establish the allegations in his pleading, and the court, of its own motion, gave the following instruction to the jury: “If you find from the evidence that defendant...