Foley v. Southwestern Land Co.

PiNney, J. 1. This action was tried and submitted to the jury upon the theory that it was essential to the plaintiff’s right to recover that the conventional relation of landlord and tenant existed between the plaintiff and the Southwestern Land Company, the owner of the premises, and that the plaintiff was, therefore, the owner of the crops, and not that the plaintiff was a cropper of its farm, rendering services [333] and performing work and labor for a certain, share of the ■crops raised, as his compensation therefor, and under which arrangement the parties would be tenants in common of the ■crops. There was no request on the part of the defendants ■that the case should be submitted to the jury under the last-mentioned aspect, and it was submitted to them to find for the plaintiff if the relation of landlord and tenant existed between the parties, and, if not, to find for the defendants. There was no request on the part of the defendants that the -court should instruct the jury as to what facts would render the plaintiff a cropper, and the parties tenants in common of the crops. It is not necessary to recapitulate the evidence. There was certainly sufficient evidence from which the jury might find, as they did, that the relation of landlord and tenant existed, under which the plaintiff would be bound to pay a specified part of the crops to his landlord by way of rent in kind for the use of the land. And it may be conceded that there was evidence from which the jury might have arrived at a contrary conclusion; but, as there was evidence sufficient to sustain the verdict, and no request was made to the court to submit any instructions as to what state of facts would have rendered the parties tenants in common of the crops, or for any more specific instructions than were given, the first assignment of error cannot be maintained. The distinction between an agreement of lease and the contract of a cropper was pointed out in Strain v. Gardner, 61 Wis. 174-184, where many of the authorities were cited, and the conclusion reached that an agreement quite the same as the one found by the jury in this case was by the strong current of authority in every essential a lease,” and the relation of the parties was that of landlord and tenant; and the court cites with approbation Taylor v. Bradley, 39 N. Y. 129; Burns v. Cooper, 31 Pa. St. 426; Ream v. Harnish, 45 Pa. St. 376; Geer v. Fleming, 110 Mass. 39; Darling v. Kelly, 113 Mass. 29; Warner v. Abbey, 112 [334] Mass. 355; and many other cases sustaining that conclusion. The term in the present case was “ during the year 1890,” and the jury have found, in substance as submitted, that an “ agreed portion of the crops raised, including hay, should go to the land company for rent of the farm, and the balance to the plaintiff,” and they were instructed that, unless they found “ that the farm was leased to the plaintiff, and he entered upon the same, and put it into crops under such lease,” they should find for the defendants. 2. The instruction of the court on the question of damages was that the plaintiff was entitled to the fair market value of that part of the crops which the plaintiff was entitled to> under the terms of the contract or lease, as such crops were situate, standing, or being on the farm at the time they were taken from the plaintiff under the direction of Ellis, adding thereto interest. It is contended that his damages did not exceed the value of the share of the crops which he was entitled to as the same stood at the time, less the expense of harvesting the defendants’ share, for by the terms of the contract the plaintiff was to obtain his share only on condition that he should plant, cultivate, and harvest the whole crop, and he had performed and incurred only a part of such labor or expense; that his damages were not the same as if the labor and expense to be performed and incurred related only.to his share at the time they were taken from him. The plaintiff was wrongfully evicted and excluded from possession of the farm by the lessor and those acting under it. They were trespassers, and their wrongful acts rendered it impossible for the plaintiff to further perform the’ contract or lease. Are the defendants to be allowed to profit by their own wrong, and defeat the plaintiff’s right to compensation for the part of the crops that belonged to him, for that reason ? Manifestly not. Such a contention cannot be allowed. Had the landlord sued the plaintiff for nonperformance of the contract of lease, the fact that by his335 wrongful and unlawful acts he had prevented performance would have been an inevitable bar. By what right, then, can it be claimed that upon the same ground he may have the plaintiff’s damages for the unlaivful taking of his part of the crops by the defendants diminished? It is a rule of law that he who prevents a thing from being done shall not avail himself of the nonperformance which he has himself occasioned, as, “if a man has covenanted to build a house on the land of the covenantee, performance of the covenant is excused if the covenantee will not suffer the covenantor to come upon the land to build, as he cannot lawfully come there without the permission of the covenantee.” Addison, Cont. (Abbott’s ed.), *1194. The principle applies to the present case, where the plaintiff has been evicted and excluded from the demised premises by the landlord and those acting under him. But for this, it is to be presumed that the plaintiff would have fully performed. That he did not was the lessor’s own act and fault, and therefore it was not damnified. West v. Blakeway, 2 Man. & G. 750. It is clearly not competent, under the circumstances stated, for the defendants to say, “We have performed your agreement for you, and your recovery for the consequences of our wrongful acts must be reduced accordingly.” Attack v. Bramwell, 3 Best & S. 520-525; White v. Binstead, 13 C. B. 307; Fobes v. Shattuck, 22 Barb. 568. The plaintiff has, therefore, been rightly allowed for his part of the crops what the jury found they were worth at the time. To this, at the very least, he was clearly entitled. 3. It was claimed that the damages allowed were excessive, but the contention cannot be sustained. The evidence on this subject took quite a range. The amount allowed is considerably less than that shown by the evidence on the part of the plaintiff, and much more than shown by the testimony of the defendants. The question of damages was for the jury, and, as the trial court refused to set aside the [336] verdict on the ground that the daniages were excessive, this •court cannot interfere. We do not find any reversible error in the case. By the Oowrt.— The judgment of the circuit court is affirmed. Makshall, J., took no part.