Davis v. McFarlane

The points of counsel are also stated in the opinion of the Court.

By the Court, Sanderson, J. The action is for the conversion of three thousand bushels of wheat, and the facts, as found by the Court, are substantially as follows:

In 1868, one Bowen plowed and sowed in wheat about two hundred and forty acres of the public lands of the United States. The land was open and uninclosed, and Bowen never had any possession or right of possession, except such as was conferred by his cultivation in the manner stated. On the 16th of March, 1868, Bowen sold the growing crop, by verbal contract, to the plaintiff, at the price of two dollars and twenty-five cents per acre. By the terms of the contract the plaintiff was to pay, and did pay, twenty dollars down, and agreed to pay one hundred and eighty dollars more on the first of April then next, and the remainder when the [635]crop should be harvested. Bowen was not residing upon the land at the time of the sale, but was residing at a place about fifteen miles distant, and there was at the time no person in the actual and visible possession of the land or crop. After the sale Bowen never lived upon the premises, nor did he have any agent or servant there, nor did he, at any time thereafter, have any actual or visible possession of the land or crop; hut he did not go to the crop and deliver possession, at the time of the sale, but said to the plaintiff: “Bow you know what you have bought, and what you will have to do; you will either have to go out there, or keep a man to take care of it.” As a part of the contract, the plaintiff was, from the time of the sale, to guard the crop from cattle, at his own risk, and cut and harvest it at his own expense. About ten days after the sale the plaintiff went out to the premises and examined the crop. He found no person there, and saw no indications that any person was or had been for a long time stopping there. The plaintiff remained there two nights and three days, continuously, at that time. On the first of April—the day upon which the remainder of the first payment of two hundred dollars was to be made, according to the terms of the contract—the amount requisite to complete the payment was tendered by the plaintiff to Bowen, who refused to accept it, saying that he had sold the crop to another person.

The cultivated fields in the vicinity or neighborhood were generally uninclosed, and, therefore, open to the incursions of cattle, and it was customary to employ some person to herd the cattle and keep them from the crops. In this the owners of the crops united, and contributed the requisite funds. The plaintiff united with other owners of crops on the first of April, and contributed the sum of seventeen dollars as his share for the protection of the crop in question. From that time until the first of J uly, the person so employed looked after and protected the crop from the incursions of cattle. The plaintiff, however, frequently visited the premises for the purpose of looking after and protecting the crop.