Hunt v. Rublee

Start, J. The action is assumpsit and is for the recovery of the value of one undivided half of sixteen tons of hay, which was cut on the defendant’s farm while the plaintiff was carrying it on at halves. The lease provides that no hay shall be sold, but the stock shall be increased to consume it. It is found that the hay was sold, or otherwise disposed of, by the defendant. It is not found that he received any money or its equivalent therefor, nor can this be inferred from the facts reported by the referee. The parties were tenants in common of the hay and other products of the farm. Willard v. Wing, 70 Vt. 123, 39 Atl. 632; Atkins v. Smith, 21 Vt. 172; Foster v. Kellogg, 23 Vt. 308. It appearing that the parties have not settled and adjusted all of their rights respecting the common property, including the hay, and it not appearing that the defendant has received any money, or its equivalent, for [450] the hay, nor that any agreement has been entered into' whereby the hay has been taken out of the general account between the parties, the plaintiff cannot recover the value of his interest in the hay in an action of general assumpsit. Albee v. Fairbanks, 10 Vt. 314; LaPoint v. Scott, 36 Vt. 603. Judgment affirmed.