Holt Manufacturing Co. v. Thornton

McFARLAND, J.

This is an action to recover the balance alleged to be due plaintiff upon a contract which it made with defendant to harvest sixteen hundred acres of grain. It is conceded that tif the amount which would be due plaintiff for the harvesting, according to the contract price, $645.04 remains unpaid; but defendant set up a counterclaim of $13,320 for damages alleged to have been suffered by him on account of the failure of the plaintiff to perform the con

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tract, and prayed judgment for that amount against plaintiff. The jury found for the defendant in the sum of $1,500, for which amount judgment was rendered for him against plaintiff ; and the latter appeals from the judgment and from an order denying its motion for a new trial.

Appellant contends that respondent was the owner of only the undivided two thirds of the grain, and that Eppinger & Co. owned the other undivided third; and that, therefore, respondent could not counterclaim damages accruing to him and Eppinger & Co., and, at most, could only recover his proportionate share thereof; hut these contentions cannot be maintained. Eppinger & Co. were the owners in fee of the land on which the grain was raised; but the instrument in writing executed by and between Eppinger & Co. and respondent, which was introduced in evidence, was clearly a lease under which respondent was the lessee of the land. The fact that the rental was to consist of a certain proportion of the grain which should be raised on the land, to be delivered after harvesting, in sacks at a named place of delivery, does not destroy the relation of landlord and tenant. Appellant had no contract relation whatever with Eppinger & Co., and the latter have no cause of action against appellant growing out of the latter’s contract with respondent. If Eppinger has a cause of action against respondent for bad husbandry, that is no concern of appellant.

Respondent’s cause of complaint is that by his contract with appellant the latter was to commence the harvesting not later that the fifth day of July, and that it did not commence until the fifteenth day of that month; and that the delay caused the damage, which consisted in the shelling-out of the grain. It is conceded that appellant did not commence until the 15th. Whether or not it contracted to commence by the 5th is a question about which there was some conflict of evidence; but the evidence was clearly sufficient to support the finding in favor of respondent on that point.