Baughman v. Reed

Belcher, C. C. —The court below sustained a general demurrer to the complaint, and plaintiff declining to amend, judgment was entered in favor of the defendant, from which the plaintiff has appealed.

The material facts stated in the complaint are as follows:—

In October, 1882, the plaintiff executed to the defendant a written lease, for the term of five years then next ensuing, of a certain ranch in Amador County, and also of certain farming utensils and stock. The plaintiff was to erect certain improvements on the premises, and to furnish to the defendant the seed needed to put in a prop the first year. The defendant was to till and in all respects cultivate the premises in a husband-like manner, and out of the crop raised the last year was to return to the plaintiff the same number of pounds of seed, and of the same kinds, as he received the first year. The defendant was also to deliver to the plaintiff, or his order, “two fifths of all the crops produced on the said farm and premises aforesaid, of every name and description or kind, to be divided on the place; hay in bale under shelter, grain of all kinds in the granary, apples, peaches, pears, plums, etc., in the fruit-house, grapes in the vineyard after being gathered, and in a reasonable [321]time after such crops shall have been harvested or gathered.” The defendant entered under his lease, and continued to occupy and cultivate the premises until the 26th of July, 1886, when this action was brought.

It is‘further alleged that plaintiff, in October, 1882, furnished to defendant, to be used as seed, 32,469 pounds of barley, and 3,700 pounds of wheat; that during the year 1886 defendant had raised on the premises 37 tons of barley of the value of $1,000, and 45 tons of wheat of the value of $1,350, and that all of this grain was severed from the ground and in process of being thrashed and sacked; that defendant intended and had threatened to and would leave and abandon the premises on completing the harvesting of the crop, and that he denied the right of the plaintiff to any part thereof, and threatened and intended to remove the whole crop, and to dispose of and convert the same to his own use; that defendant is insolvent.

The prayer is that 32,469 pounds of the barley, 3,700 pounds of the wheat, and two fifths of the remainder of the crop be segregated and set apart to the plaintiff, and that a receiver be appointed pending the action, and for general relief.