Phillips v. Cleaver

BARNARD, P. J.

This is an action for an accounting and for damages arising out of a farming venture.

The plaintiff, as the owner of about 34 acres of land, entered into an oral agreement with the defendant Cleaver for the farming of the land during the 1944 crop year. The agree

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ment was entered into on December 10, 1943, and provided that Cleaver would furnish the tools and the labor of one man; that he would farm the land, putting in about 18 acres of barley and about 16 acres of fall potatoes; that all expenses; including the cost of any additional labor, should be shared equally by the parties; and that they would share equally in any profits derived from the venture.

Cleaver neglected to begin operations until the season for planting barley had passed, so no barley was planted. In February, 1944, Cleaver turned over the farming of the land to the defendant Hanzlik under some sort of an arrangement between them. Hanzlik planted 18 acres of watermelons, but because of late planting and improper care the crop produced was very small. Later on, Hanzlik planted about seven acres of the land to fall potatoes, and for the same reasons a small crop was produced. The remaining nine acres was never planted to anything.

Having received nothing from the crops produced, the plaintiff brought this action for an accounting and for damages. The court found in favor of the plaintiff, finding that this was a joint adventure as between the original parties; that Hanzlik acted as the agent of Cleaver during this cropping season, but claimed an interest in the profits from the joint adventure; that crops of watermelons and potatoes were produced; that the defendants retained all the proceeds therefrom and had refused to account to the plaintiff therefor; that it was impossible to ascertain the amount due to the plaintiff from the proceeds of these crops without an accounting by a referee; that the defendants had failed to properly care for the crops which were planted; that the defendant Cleaver had failed to plant 18 acres of barley, had failed to plant nine acres to any crop at all, and had failed to properly farm and care for such crops as had been planted; and that the plaintiff had been damaged in the sum of $2,500 because of such failure on the part of Cleaver. A judgment, which followed the conclusions of law, was then entered on June 25, 1946, which provided (1) that a certain referee be appointed to take an account and report his findings with respect to the receipts and expenditures in connection with the crops that were produced; (2) that plaintiff have and recover from the defendants, and “they are hereby ordered to pay to plaintiff,” the amount which such an accounting disclosed to be due to him; and (3) that plaintiff baye an,d recover from the