Mascarel v. Lynch

SLOSS, J.

The action was commenced by Sylvester Mascarel against J. R. Lynch to recover $2,930, alleged to be due plaintiff’s assignor, J. P. Goytino, as his share of the proceeds of milk, cream, and hay disposed of by Lynch in the course of farming operations conducted by Lynch upon land leased

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to him by Goytino. The lease, a copy of which is attached to the complaint, let the premises to Lynch for five years from the first day of May, 1903, required the lessee to plant and cultivate alfalfa and apple trees upon a given number of acres, respectively, of the land, and to sow a further acreage in grain during each year. The proceeds of grain crops were to be equally divided between Goytino and Lynch, as were the proceeds of pasturage, or of sale of stock placed on the ranch by either party. Of the amount sued for $930 is claimed on account of milk and cream sold and two thousand dollars on account of hay.

Lynch answered, denying the indebtedness set out in the complaint. He also filed a cross-complaint against the plaintiff and Goytino. By this pleading he averred full performance on his part of the terms of the contract of lease above referred to, except with respect to provisions which had been waived by mutual consent. He alleged that Goytino’s share of the amounts received in conducting the ranch was as follows: For hay sold, $868.62; for stock pastured, $491.23; for proceeds of a creamery business conducted on the ranch by Lynch and Goytino jointly, under an agreement made in 1906, $716.46; for profits realized from the raising and sale of hogs under a like agreement made in 1905, $350.15; for cattle purchased and sold, including the original purchase price advanced by Goytino, $2,315, of which $2,295 had been paid, leaving a balance due, on the last item, of twenty dollars. The total credit due Goytino on all these accounts was alleged to be $2,255.44, and defendant claimed, for money paid to Goytino or expended on his behalf, the sum of $2,768.10, leaving a balance to defendant’s credit of $512.66.

The cross-complaint further alleged that about 180 head of cattle, besides calves, remained upon the premises, and that defendant is entitled, under the lease, to one-half of the proceeds of the sale of these; that Goytino has transferred his interest in the contract “and the properties thereof” to Mascarel; that Mascarel is in possession of the said cattle, and claims them as his own, repudiating the rights of Lynch in the same, and in any of the proceeds thereof. The pleading prays for an accounting, the sale of the cattle, and the distribution of the proceeds to the parties entitled.