Dahl v. Fuller

Obton, J. There appears to be no controverted question of law in this case, nor any question of the title of the plaintiff to one undivided third of the grain in controversy, or of his offer and demand for a division of it. The only question of fact raised by the learned counsel of the appellants is, whether both of the defendants made themselves liable for the conversion of the plaintiff’s one-third of the grain, both threshed and unthreshed, at the time of the demand. Several witnesses testified that, when the plaintiff’s employee and agent applied for a division of the grain, both of the defendants said “ there had been no division made, and they did not propose to have any.” The witness Frost testified that “ they told him there was no wheat there for him, and he could not have any wheat,” and they refused to let him have any of it; they said “ they would not divide it, and that I could not have a kernel of it.” This was said to Frost when he demanded a division of the grain, as agent for the plaintiff. The witness Sumner testified that the “defendant Fuller said positively that no one should touch it unless they went over or through him.” The defendant FvXler, on cross examination, testified that the grain was all sold, “ and the proceeds turned to pay the debt of us three on the farm.” This evidence was most clearly sufficient to warrant a verdict for the plaintiff against both of the defendants for the value of one-third of all of the grain, threshed or un-threshed. These defendants both excluded the plaintiff from [505] all participation in tlie joint property or its proceeds, and the property was finally disposed of for their joint benefit, and the plaintiff had the right of severance of his share, which the defendants refused and defeated. Newton v. Howe, 29 Wis., 531; Danbury v. Bean, 54 N. H., 255; and many other cases cited in respondent’s brief. There are no specific objections pointed out, in the brief (, of appellants’ counsel, to the instructions given by the court to the jury and excepted to, and we are unable to find any. By the Court. — The judgment of the circuit court is affirmed, with costs.