Tuohy v. Linder

COOPER, C.

This action was brought to recover eleven hundred and ten sacks of wheat, or the value thereof in ease a delivery could not be had. Judgment was entered for the

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plaintiff upon the findings, and this appeal is from the judgment and order denying defendants’ motion for a new trial.

The court found that on the twenty-sixth day of July, 1900, the plaintiff was the owner, in the possession and entitled to the possession, of the wheat unthreshed in stacks on plaintiff’s land; that while plaintiff was so the owner and in possession, and entitled to the possession, the defendant Linder wrongfully] in the night-time, went upon the plaintiff’s said lands, threshed the said wheat, put it in sacks, and removed it. These findings are supported by the evidence, and entitle plaintiff to judgment. The facts are in substance as follows: In September, 1899, the plaintiff, being the owner of section 13 and the south half of the northwest quarter of section 14, township 20 south, range 27 east, Mount Diablo base and meridian, entered into a contract with one Turner, under the terms of which Turner agreed to plow, seed, and harrow the said land, and to seed it with wheat for the cropping season of 1900, and, when matured, to cut, thresh, and clean the same, putting it in sacks in good merchantable condition. The contract provided that when Turner had so harvested the crop he would deliver to plaintiff at his warehouse one fourth thereof, and that Turner would take “on the ground when threshed, the remaining three fourths of the crop, as full pay for all services herein required of him. Thomas Turner also agrees to do all his work in a good farmer-like manner. In consideration of the foregoing services, John Tuohy agrees that when Thomas Turner has fully performed all of the services herein mentioned to be performed by him and, as full pay and compensation thereof, he will deliver to Thomas Turner the three fourths of the crop remaining on the ground when threshed.”

The contract contained the added provision: “Should I be owing John Tuohy any amount at the time the three fourths of the crop is to be delivered to me, I hereby authorize him to retain sufficient wheat from the said three fourths to pay himself in full, which I bind myself to deliver to him in the warehouse at Lindsay before the remainder of the three fourths is moved from the ground where threshed. The value of the wheat so taken to be the best offer John Tuohy has for it at the time of delivery. Thomas Turner.” -