Turner v. Morris

• Decision Date: 07 February 1910
• Parties: TURNER v. MORRIS.
• Court: Missouri Court of Appeals

125 S.W. 238

142 Mo. App. 60

TURNER v. MORRIS.

Springfield Court of Appeals. Missouri.

February 7, 1910.

1. FRAUDS, STATUTE OF (§ 72) — NATURE OF PROPERTY — CROPS.

Annual crops, whether growing or matured, are to be regarded as personal property distinct from the land and capable of being sold by oral contract.

2. CUSTOMS AND USAGES (§ 14) — PAROL EVIDENCE — VARYING TERMS OF CONTRACT.

Where there is an express contract between the landlord and tenant as to the division of the crop in suit, evidence of a general custom in the neighborhood as to such division is inadmissible.

3. REPLEVIN (§ 71) — EVIDENCE — ADMISSIBILITY.

In replevin for wheat, it appeared that plaintiff, when conveying land to defendant, agreed that defendant should have one-third of the crop of wheat grown on the land by a tenant; that defendant was given such one-third; and that the wheat in suit was another one-third of the crop which plaintiff claimed under a contract with the tenant for paying one-half of the expense of making and harvesting the crop. Held, that evidence of conversations between plaintiff and his tenant as to such expenses was admissible, though defendant was not present.

4. REPLEVIN (§ 91) — TRIAL — INSTRUCTIONS.

In such case it was not error to instruct the jury to find for plaintiff, "if at the time plaintiff and defendant made their contract * * * plaintiff informed defendant that he only had title to one-third of the wheat, and if that was all of said wheat he had title to, and defendant agreed to take one-third of said wheat in the trade, * * * and the title to the wheat in controversy was not to pass to plaintiff [from the tenant] until he had paid for one-half of the expenses of harvesting."

5. APPEAL AND ERROR (§ 1033) — REVIEW — HARMLESS ERROR — ERROR FAVORABLE TO APPELLANT.

A judgment will not be reversed for an erroneous instruction in appellant's favor.

Appeal from Circuit Court, Barry County; F. C. Johnson, Judge.

Replevin by George M. Turner against Albert Morris. Plaintiff had judgment, and defendant appeals. Affirmed.

For report on transfer from Supreme Court, see 121 S. W. 9.

This cause originated before a justice of the peace, and is a suit in replevin where plaintiff in his statement claimed 66 2/3 bushels of wheat. His statement and pleading is after the approved forms in such cases. The defendant filed an answer under oath in the justice's court alleging that title to real estate would be in issue and that defendant had purchased by general warranty deed from the plaintiff the land on which the wheat grew in February, 1905, and that no reservation of growing crops was made in the deed, and that the plaintiff's interest in the wheat passed to the defendant by the sale of the land. The justice thereupon certified the case to the circuit court under section 3951 of the Revised Statutes of 1899 (Ann. St. 1906, p. 2173). The case was there tried before a jury, the plaintiff obtained judgment for the recovery of the wheat, and the defendant has perfected this appeal.

The facts out of which this controversy arose were that the respondent, George M. Turner, owned and lived on a farm in Barry county, and appellant owned and lived on a farm in Lawrence county. On the 16th day of February, 1905, they traded farms. At the time of making their respective conveyances, there was wheat growing on the Turner farm in Barry county, and the controversy in this case grows out of the ownership of that wheat. It appears that prior to the time the exchange of farms was made Turner and one Johnson had entered into a contract in regard to the sowing of this crop of wheat; that Johnson had put the wheat in under such agreement and was in possession at the time that respondent, Turner, and appellant, Morris, made the trade of their farms. The conflicting claims of the parties to this litigation may best be shown by their own statements of what was said at the time the farms were traded. The testimony of Turner shows that there was some cavilling as to who should have the wheat, and he testified: "I remember the conversation I had with Mr. Morris in the presence of Mr. Plummer. He was to have one-third of the wheat on my place here, and I told him I could not trade but one-third, the rest was rented." On the other hand, Morris testified that Turner at the time of the making of the contract said: "I will let you have my interest in the wheat on my place. I can't trade Mr. Johnson's; if I do, I will have to pay for it." The controversy therefore narrows itself down to this: Was appellant Morris to get only one-third of the growing crop in any event, or was he to get all of the respondent's interest whether it should turn out to be one-third or two-thirds of the crop? Each of the parties to the suit introduced evidence tending to support his version of the contract. As to the contract for the wheat between Turner and Johnson, both of them testified substantially that the contract was that if Turner helped Johnson sow the wheat and performed one-half of the labor and paid one-half of the expenses, Turner was to have two-thirds of the wheat and Johnson one-third; otherwise, Johnson was to have two-thirds of the wheat and Turner...