Peck v. Simon Newman Co.

FINCH, P. J.

Plaintiff appeals from a judgment in favor of defendants.

Plaintiff leased certain lands belonging to him to E. T. Wiggins, together with personal property thereon, including cows, bulls, heifers, calves, and hogs, for a term of seven years from January 1, 1916, the lessee to furnish the necessary labor in the operation and management of the property and the net proceeds to be divided equally between the parties. The lease provided: “The lessee shall return to the lessor, at the end of the termination of the term, the same number of cows of the same ages of those leased, and at all times the cows upon the land which are purchased from the proceeds of the sales of the cows leased or acquired by exchange of said cows shall belong to the lessor and be a part of the property leased herewith and be held under the same terms as though the original cow had continued upon the place.” Like provisions were made as to the heifers, bulls and hogs. It was further “agreed that, at all times, hogs, horses, mules and cattle, however acquired from funds derived, directly or indirectly, from said leased land or the produce thereof to 'the number of those leased shall belong to the lessor with the division herein provided for upon the termination of the lease. ... At the termination of the term, the cows, hogs, calves, heifers and bulls shall be restored in kind and the remainder of the increase shall be» divided as follows: If any of the remaining cows, calves,, heifers, bulls or hogs have been purchased from the proceeds of the ranch, or the increase of those leased, these shall be equally divided between the lessor and the lessee as nearly as can be, according to their value, numbers and ages.” Further provision was made that one-half of the net proceeds “shall be paid to the lessor on the first day of each and every month.”

[432]

May 25, 1918, in an action brought by defendant Simon Newman Company against Wiggins, the livestock then on the land was attached, the 'company paying the mortgage liens thereon hereinafter mentioned. May 29, 1918, Wiggins gave the company a bill of sale of the livestock and the company took possession of the property. A part of the property included in the bill of sale was thereafter delivered by the company to the plaintiff 'and this action involves only the hogs and the cattle described in the bill of sale. Plaintiff thereafter commenced this action of conversion and at the trial thereof sought to prove that he was the owner of the livestock by virtue of the terms of the lease and further that, prior to the attachment, Wiggins had transferred the property to the plaintiff, pursuant to the provisions of the lease. The only ground urged for a reversal is that .the evidence is insufficient to support the findings. The evidence bearing upon- some of the issues is very meager and, since plaintiff had the burden of proof, failure to produce evidence upon any issue justifies a finding in favor of defendants upon such issue: