McCormick v. Skiles & Frey

Opinion by Mb. Justice McCollum, It appears to the writer that McCormick was the real as well as the apparent owner of the tobacco when he agreed with the defendants to sell and deliver it to them. It was raised on his farm, under an arrangement with Fowler and the Doreys which he described on the. trial as follows : “ They received the half for planting it and working it, and taking care of it and packing it.” Surely this arrangement did not make the parties to it tenants in common of the tobacco or partners in raising it, nor establish between them the relation of landlord and tenant. Fowler and the Doreys were employees of McCormick in raising the tobacco, and were to receive one half of it as compensation for their labor. They were croppers, and as such they acquired no property in the tobacco before it was divided: Fry v. Jones, 2 Rawle, 11; Adams v. McKesson, 53 Pa. 81; Steel v. Frick, 56 Pa. 175; and Am. & Eng. Ency. of Law, vol. 4, pages 887 and 889, and cases there cited. But what has been said on this subject may be regarded as a mere suggestion of a possible view of the case which was not presented on the trial or in the argument on appeal. It will not be made a factor in the decision of the case. The-appellants complain of the" instructions which allowed the jury to consider the payment made by the defendants when they purchased the tobacco as a set-off in or equitable defence to this action. The conditions on which the jury were permitted to so consider it were that the payment was- made on account of the tobacco which McCormick sold to the defendants at that time, or that he became indebted to them in that amount by his failure to deliver the Fowler crop in accordance with his agreement. We think the instructions, read in the light of these conditions or qualifications and the evidence in the case, were promotive of justice and free from error. In the first place McCormick, as apparent owner of the tobacco, agrees to sell and deliver it to them. Their agreement was in writing and with him. The designation of the tobacco in this agreement as the “Wm. Dorey crop and Al. Dorey crop ” or “ the Fowler crop,” did not make Fowler or the Doreys parties to the agreement or partners of McCormick in the sale, nor was it intended to do so. In the next place it appears from the testimony of McCormick that he paid the Doreys one half the [595] sum for which the Dorey crops were sold, and it appears from the evidence of Fowler that, shortly after the sale of the tobacco to the defendants, McCormick paid Mm for his interest in or claim upon it, in consummation of previous negotiations between them in relation thereto. From the evidence produced by the appellants it therefore appears that the defendants paid McCormick for all the tobacco he delivered to them, that he paid the Doreys all they were entitled to receive under his agreement with the defendants, and that he purchased and paid for the interest or claim of Fowler. He was therefore the sole equitable owner of the claim in suit, and the first payment made by the defendants, whether on account of all the tobacco purchased at that time or on account of the Fowler crop alone, was available as a set-off or equitable defence to it: Childerston v. Harnmon, 9 S. & R. 68. The specifications of error are overruled. Judgment affirmed.