Adams v. Thornton

This action was brought in replevin to recover one hundred and eighty-six and three-fourths sacks of dried apricots or their value in case a delivery could not be had, together with damages for their detention. When plaintiff rested, a motion for nonsuit was made and the court granted the motion "solely for the reason that the court feels bound by the decision of the Appellate Court for the Third District rendered on the prior appeal in this cause, to hold that plaintiff and defendant are tenants in common of the property described in the complaint, and that this court should grant a nonsuit on such grounds."

In the decision by this court on the former appeal it was held that "While the agreement set out and under which the parties were operating is called therein a lease, yet under *Page 457 the authority of Bernal v. Hovious, 17 Cal. 542, [79 Am. Dec. 147], it must be deemed only a cropping contract, and the parties are cotenants in the fruits raised during the time of the contract, and each has an equal right with the other to the possession of the whole of said fruit, and, under the general rule, neither can maintain a suit against the other for the possession of the fruit," and the judgment was reversed on the ground that the motion for a nonsuit should have been granted.

It is claimed by respondent that the aforesaid decision of this court is the law of the case and that we must affirm the action of the trial court in granting the nonsuit in consonance with the mandate of the appellate court.

Among the decisions declaring the effect and scope of such a judgment as bearing upon the subsequent history of the litigation, the cases of More v. Calkins, 95 Cal. 436, [29 Am. St. Rep. 128, 30 P. 583], and McGraw v. Friend Terry Co.,133 Cal. 589, [65 P. 1051], are directly in point. In the former, as we find in the syllabus, it is held that "The construction placed upon a deed of trust by the Supreme Court in its decision reversing the judgment and remanding the case for a new trial . . . is the law of the case and the question of its correctness will not be considered upon a second appeal."

And so here, we cannot call in question the construction placed by this court in the former appeal upon the written contract between the parties. We are bound to hold that it constituted a cropping contract, and that by virtue of its provisions the parties became tenants in common in and to all the fruit produced, which was the subject matter of said contract.

The only remaining question is whether the determination by the appellate court that claim and delivery would not lie in view of the evidence disclosed by the record and that the nonsuit should have been granted at the former trial precludes us from any inquiry into the evidence taken at the second trial to find the absence of support for the action of the court in granting the motion for a nonsuit. The proper solution of this question depends upon the consideration whether the evidence was the same or substantially the same at both trials. In the McGraw case, supra, it is said that "in an action for negligence a motion for a nonsuit on the ground that *Page 458 the evidence for the plaintiff establishes his contributory negligence, so as to preclude a recovery, raises a question of law; and the decision upon a former appeal, that a nonsuit should have been granted upon that ground, is the law of the case upon a second appeal when the evidence for the plaintiffdoes not warrant a different conclusion." And in Sharon v.Sharon, 79 Cal. 633, [22 P. 26, 131], it is said that "The rule has no application when the facts presented on the second appeal are materially different from those on which the decision was rendered." (Citing Nieto v. Carpenter, 21 Cal. 454; Meeks v. Southern Pacific R. R. Co., 56 Cal. 513, [38 Am. Rep. 67]; Cross v. Zellerbach, 63 Cal. 623, andDodge v. Gaylord, 53 Ind. 365.)