Bryant v. Dyer

BROADDUS, J. During the trial it was shown by the plaintiff’s own evidence that one P. L. Maslin, was to have one-sixth of the hay for helping plaintiff to cut and put it up; that is, after it was cut and put up, he was to have a one-sixth share of plaintiff’s half. It is contended by respondents that plaintiff not being the sole owner of the hay, if he was the owner of any part of it, he can not recover. And such is the law, as has long been settled in this State. Upham v. Allen, 76 Mo. App. loc. cit. 212. But plaintiff, contends that Maslin’s title was dormant until the hay was cut and put up. The substance of which contention is that his interest in the hay was contingent upon his helping to cut and put it up. If this contention is true, and we are not prepared to deny but that it is, what standing has the plaintiff in court? for it seems that his title is founded upon a similar state of facts. Under his contract with the defendant James D. Dyer he was to cut, house and stack the [460] north half of the forty-acre meadow for the said Dyer,upon the completion of which he was to have for his services the hay on the south half of said meadow. He only cut, housed and stacked a part of the north half, Tput was prevented by defendant from completing his contract for cutting all the hay. But it is insisted that possession vested in plaintiff at the time it was agreed that he should have all the hay south of a certain line, drawn from east to west across the meadow, if he would cut and secure for defendant all north of said line. If the matter had rested there and plaintiff had done-nothing towards a compliance with his contract, surely it could not be contended seriously that any, possession of the hay was in him. It is conceded that the contract was executory merely, but it is asserted that as the plaintiff did actually perform a considerable part of the work in cutting and securing for defendant the hay on' the north half of said meadow, that this part performance on his part gave him the possession of all the hay on the south half of the meadow. But he did not cut any part of said south half until after the respondents had cut and put up that part now in controversy; and the part he did cut he was permitted to carry away. The contract between the parties did not of itself put the plaintiff into- possession and it remained in the owner of the meadow. He did not go upon the south half of the ground to cut hay until that in controversy was already cut and in the. possession of the other defendant. Had he been permitted to complete the contract, then by reasonable construction thereof he would have been the owner of a certain, one-half of the hay. We do not understand that a part performance of a contract of .this nature would entitle a party to recover the property itself. The case is similar in principle to that of Woodward v. Conder; 33 Mo. App. 147. It was there held: “Where it was agreed that defendant should cut and harvest the grass on plaintiff’s lot and receive as compensation therefor one-half the hay so harvested, [461] this did not establish thé relation of landlord and tenant between the parties; and if the plaintiff afterwards permitted a third person to harvest a part of the same crop, the defendant’s only remedy would be in an action for breach of the contract. The defendant could not enter upon the premises by force, and without the plaintiff’s consent, and haul away a part of the crop harvested by such third person without being liable to the plaintiff for the trespass.” The hay in question here, until severed, was a part of the land and had not been grown by the plaintiff as-tenant, and we can not perceive upon what reasonable grounds‘he could claim to have been in possession of the land, as he must have been in order to have been in possession of the standing crop. It is useless to cite authorities on this question. The plaintiff, in order to recover, was required to show title of some kind and the right to immediate possession. Having failed in that respect, he was not entitled to a finding in his favor and the court was justified in holding that under the evidence he was not entitled to recover. Cause affirmed. All concur,