Lanyon v. Woodward

LyoN, J. The contract of January 24, 1879, between the plaintiffs of the one part, and Pettis and Moss of the other part, is, we think, substantially a contract for the raising of a crop of flax on shares. The plaintiffs furnished the seed, and Pettis and Moss the land and labor necessary to produce the crop. The parties stipulated that the whole crop ■of flaxseed should be and remain the property of the plaintiffs, of which 83 42-56 bushels should be theirs absolutely, and the balance should be subject to the payment by them to Pettis and Moss of the Chicago market price of flaxseed, 'less twenty-five cents per bushel, and less advances. Pettis and Moss also stipulated to pay the plaintiffs the deficiency, should the crop fail to yield them the 83 42-56 bushels. Undoubtedly parties making a contract to raise a crop on .shares may make valid stipulations for the disposition of the -crop. They may stipulate what interest each shall have in it, or that the legal title to the crop shall be and remain in [657] one of them, with a charge upon the crop or some part of it in favor of the other, and such stipulations will be valid as between themselves. This view does not conflict with the cases in this court in which it has been held that a chattel mortgage of goods not in esse, or of after acquired goods, is inoperative. In the first of these cases (Comstock v. Scales, 7 Wis., 159), the rule was applied to a mortgage on a crop of grain, executed to one not otherwise interested in the crop, at or about the time the seed for the crop was sown and before it was up. The same rule was applied in Chynoweth v. Tenney, 10 Wis., 397; F. L. & T. Co. v. Commercial Bank, 11 Wis., 207; Single v. Phelps, 20 Wis., 398; Mowry v. White, 21 Wis., 417; Hunter v. Bosworth, 43 Wis., 583. In each of these cases a debtor sought to secure his creditor by a mortgage on property either not in esse, or which neither of them then owned, but which the mortgagor expected to acquire at some future time. The contract now under consideration belongs to an entirely different class, and its validity and effect must be determined by rules of law which have no application to the above cases. Under this contract the parties to it embarked in a joint adventure, to wit, the raising of a crop of flax-seed. For their share of the proceeds of the adventure the plaintiffs were to have the whole crop, which the other parties undertook should amount to 83 42-56 bushels. Pettis and Moss were to receive as their share of the adventure, from the plaintiffs, the Chicago market price, less twenty-five cents per bushel for the whole crop in excess of 83 42-56 bushels. We perceive no grounds upon which the validity of the contract can be successfully denied. We think it valid, and that the parties to it take under it precisely Avhat they stipulated for. We are of the opinion, therefore, that the legal title to the whole crop was always in the plaintiffs, subject [658] -only to their obligation to pay Pettis and Moss the stipulated price for the seed raised in excess of the 83 42-56 busli-<els. By the terms of the contract Pettis and Moss were to •deliver all of the seed raised, well cleaned, to -the plaintiffs -on or before December 1, 1879. As to the S3 42-56 bushels, which belonged to the plaintiffs absolutely, although Pettis and Moss had until that date to prepare and deliver it, yet if it was ready for delivery before that date it is not perceived why the plaintiffs might not have claimed a delivery as soon as it was ready. Pettis and Moss could obtain no advantage by retaining it beyond that time, and it would be an unreasonable construction of the contract to hold that they might wantonly do so. As to the balance of the crop, the rate per bushel to be paid by the plaintiffs was to be fixed by the market price in Chicago on the day of delivery. It was optional with Pettis and Moss to deliver and take the price before December 1st, but they did not agree to do so. They might deliver on that day, and thus take the benefit of the Chicago price of that day. This part of the crop, therefore, was not subject to be replevied by the plaintiffs until after December 1st. Thus far we have only considered the rights of Pettis and Moss. The defendant is in no position to claim any other or greater rights. He acquired whatever interest he had in the flaxseed with full knowledge of the plaintiffs’ interest therein, and he is no better or different position in respect to it than Pettis and Moss would have been had they retained such interest, and were they the defendants in this action. Moreover, the uncontradicted oral testimony is that the seed was sold on the Barnes execution, subject to the plaintiffs’ interest therein, by virtue of the contract of January 24, 1SY9. The effect of this testimony was somewhat discussed in the arguments of counsel, but it is unnecessary to determine its effect, because it may be stricken out without affecting the rights or liabilities of the parties. [659] Although as to the balance of the flaxseed over and above the S3 42-56 bushels the action was prematurely brought, because the defendant, who succeeds to the rights of Pettis, had until December 1, 1879, to deliver the same, yet at that time the right of the plaintiffs thereto would have been absolute on payment of the sum stipulated to be the amount of tiie interest of Pettis and Moss therein. The trial was had after December 1st. The seed had been delivered to the plaintiffs by the officer who served the writ of replevin, and presumably had been marketed. In that case there could be no return of any of the seed to the defendant. Regularly the judgment should have been for a return to the defendant of that part of the seed in which he had an interest, or for its value, in case return could not be had. But, under the circumstances, the judgment is equivalent to that, for it allows the defendant the value of his interest in the seed. The court found the value of that interest to be one dollar per bushel. That was the market price at the place of delivery on October 13, 1879, the date of the service of the writ. ¥e suppose that figure is ob#bined by deducting twenty-five cents from the Chicago market price on that day. The seed rose in value afterwards, so that, as we understand the testimony of one of the plaintiffs, the contract price on December 1, 1879, was $1.25 per bushel. The defendant has the right to have his interest in the seed estimated by the price on that day. Because the value of defendant’s interest in the seed was measured by an erroneous standard to his prejudice, the judgment must be reversed. It is claimed for plaintiffs that they should have been allowed an advance of $14 made to Pettis and Moss at the date of the contract. We think the claim well founded, and the defendant’s interest in the 122 44-56 bushels should have been found to be' $14 and the agreed interest thereon less than the value of the seed at $1.25 per bushel. By the Court.— The judgment of the circuit court is re [660] versed, and the cause will be remanded, with directions to that court to render judgment in accordance with this opinion.