Woodward v. Suydam and Blydenburg.

in the market to $9.50 per barrel. This was after the most of the plaintiff's flour had been sold. These are substantially the proofs.

The counsel for the defendants then asked the court to instruct the jury that the plaintiff was not entitled to recover, because of the variance between the proof and the declaration, The court instructed the jury, that, as the declaration averred, the defendants received the flour to sell at eight dollars per barrel, the averment was not sustained by the plaintiff's letter of instructions, of the 10th of July, to hold on to his flour, unless they could obtain somewhere in the neighborhood of eight dollars per barrel, and that the plaintiff was not entitled to recover under the special counts, but that the evidence was properly admissible under the common count for goods sold and delivered; and the rule of damages would be, the value of the flour at the time it was sold by 363] the defendants, in violation of their instructions; and it was the real value, at the time of sale, which should be ascertained. With these instructions, the court are satisfied. They are, doubtless, the law of the case, as the evidence appeared on the trial. As the flour was sold by the defendants contrary to the plaintiff's directions, it appears to us the plaintiff is authorized by the books to treat them as purchasers, and to recover the value, as for goods sold. 5 Ohio, 349; 7 Johns. 132; 12 Wend. 38. But, taking this view of the case, the damages are unquestionably excessive, upon any legal calculation which can be made. We shall not, however, go into particulars upon this point, as there is another view of the case upon which a new trial should be granted, and, from the evidence, as before presented, leaves it clear, in our opinion, that the verdict should have been for the defendants.

The evidence is, that the defendants, frequently, from time to time, advised the plaintiff of the sales of the flour; a part of it was sold while he was present in New York; he received advices of the last of the sales, and drew for the balance of the money in the defendant's hands; and at no time disaffirmed, disapprobated, or censured their proceedings, until the institution of this suit.

The plaintiff, therefore, in our opinion, falls within the principle recognized by Justice Story, in his work on Agency, and which is supported by numerous authorities cited by him, in the margin of the same page, that, " If a factor should sell goods for a price below his limits, and should send an account of his sales to his principal, who should make no objection, but should draw for

Case v. Hart and Humphrey.

the balance admitted to be due on the account, it would amount to a ratification of the sale." Story on Agency, 252.

This seems to be the identical case before us. A new trial must be granted, at the defendants' costs.

New trial granted.

*ABRAHAM CASE v. COLUMBUS HART AND JAMES W. HUM- [364

PHREY.

A landlord leasing to a cropper for one year, reserving, as rent, a part of the grain, has a lien upon the growing crop, and the entire crop can not be removed by the tenant, or those acting under him, until the rent is provided for.

Trover will lie for the landlord's share.

THIS is a motion for a new trial, in an action of trover, from the county of Huron.

It is submitted to the court upon the following agreed case: "On February 12, 1839, the plaintiff, Case, leased to Petty and Brayton a portion of his farm, in the township of Lyme, Huron county. The material parts of the lease are as follows: Article of agreement, made this February 12, 1839, between Abraham Case, of the first part, and Charles Petty and Rufus Brayton, of the second part, witnesseth: the said party of the first part agrees to rent to said party of the second part the west side of the road running through the farm of the party of the first part, in Lyme, for one year. The party of the second part is to till forty acres of land, in a good workmanlike manner (twenty-five acres of corn, and the remainder of it in oats and wheat), and to deliver to said party of the first part, in the half-bushel, one-third part of all the grain that is raised on the above-mentioned land.'

"Shortly afterward, Petty bought out Brayton, and became the sole owner of the interest in the lease. About November 1, 1839, James Hamilton and Bruno Silva, two of the creditors of Petty, recovered judgments against him, one in the sum of $25, and the other about $30; and on these judgments executions issued the same day, placed in the hands of the defendant, Humphrey, who was the constable of the township, and who afterward made

Case v. Hart and Humphrey.

return thereon that he had levied the same on a field of corn (being a field of corn then standing on the leased premises, and cultivated under said lease by Petty), and, on November 12, 1839, 365] as appeared from the return, he sold the corn to the defendant, Hart. It appeared in evidence, that Hart was security for the defendant, Petty, in the judgments, and that, in bidding, he did so at the instance of Hamilton, who was absent on the day of sale, and that the bid was made to secure himself and the plaintiffs in the judgments; and that this was the arrangement by which Petty was to go on under the lease, harvest the corn, and pay the judgments.

Petty went on and harvested the whole field of corn, and evidence was introduced by the plaintiff, which tended to prove that Petty harvested the whole field of corn by the direction of the defendant, Hart, and as his agent; but as to this last point there was some conflicting testimony. Petty removed all the corn from the field. A load or two only was taken to the barn of Hart to be thrashed, and only this ever came to the possession of Hart. There was evidence that the plaintiff said to Hart, after the purchase, that there was corn enough to pay him and to pay the judgments too. The return on Silva's execution is in these words: 'Nov. 12. Sold the property to Mr. C. Hart, for which Hart had not paid when the proceedings were stayed by order of plaintiff.' The corn was husked out by Petty, and enough of it to satisfy the judgments went to pay them; but the plaintiff, Case, never got any of it.

"The counsel for the defendants asked the court to charge the jury, that, though the return was of a levy on the whole field, yet, if they believed that the constable, at the sale, and Hart, then and afterward, only intended to claim the two-thirds of the corn which belonged to Petty, and that Petty was not authorized by Hart to harvest or take away any more from the field, that then the plaintiff ought not to recover.

"This charge the court refused to give, but did charge the jury that, under the above lease and evidence, neither the constable, Hart, nor the tenant would have any right to take away any por tion of the corn, until he had first set it out to the plaintiff, Case, the part that belonged to him. To this charge the defendants objected and asked for a new trial."

Case v. Hart and Humphrey.

*No argument for the plaintiff came to the hands of the [366 reporter.

BOALT & WORCESTER, for defendants, argued :

That the lease of the plaintiff, to Petty and Brayton, passed an interest in the soil, and was a lease for a year, and not a contract which merely authorized them to enter and cultivate the soil for a single crop. 4 Kent's Com. 85, 95; 1 Johns. 267; Hill. Abr. 133; 9 Johns. 113; 4 Dana's Abr. 129.

That no interest in the corn or other grain vested in the landlord until the grain was harvested and his share separated from the mass by delivery. 9 Johns. 113; 5 Pick. 522; 1 Hill. Abr. 148, and cases there cited.

That no such interest is vested in the landlord by the statute. Swan's Stat. 520, sec. 84. The construction of this statute being undetermined by our own courts, we may look to similar statutes in other states. In Kentucky, a statute for like purpose is in force, to which the English decisions upon 8 Ann, ch. 14, have been held applicable. 2 Dana, 208; 3 Dana, 211. So, also, have been the decisions in New York upon their statutes, in relation to this subject. 11 Johns. 186; 17 Wend. 39; 13 Serg. & Rawle, 297. Upon the construction of these statutes, and 8 Ann, ch. 14, it has been decided, that the lien applies only to the immediate landlord, and not as between the ground landlord and a sublessee. Burnet's case, Strange, 787. That the landlord must notify the sheriff of his lien prior to a sale under judicial process and demand his rent, otherwise it is not the duty of the sheriff to retain the rent. Warring v. Duberry, Strange, 97. This notice is required from the nature of the case, although the statute is silent. 1 Strange, 214; 2 Wils. 240; 11 Johns. 186; 17 Wend. 39; 4 Wend. 476; 2 Dana, 209; 3 Dana, 211; 5 Watt, 139; 13 Serg. & Rawle, 297. If the sheriff, after demand, remove the goods, he is liable only for their value, deducting expenses. *Dodd v. Saxby, [367 Strange, 1024. The remedy of the landlord is by motion to the court, that the money be paid to him, or by a special action on the case. 2 Wils. 140; 17 Wend. 39; 4 Wend. 576. The rent must be that of the year immediately preceding the execution. 1 Strange, 214. A bill of sale of the goods is a removal of them, and vests the title in the purchaser unincumbered by the landlord's lien. 1 Atk. 104; 2 Dana, 209. The purchaser under exe

Case v. Hart and Humphrey.

cution acquires a title discharged of the lien, and no suit will be against him for the property. 2 Dana, 212.

They contended that the plaintiff had not, either at common law cr upon a proper construction of the statute, such property in the crop as to maintain trover, and that the facts did not show a conversion sufficient to support such action.

BIRCHARD, J. By the terms of the agreement, which is a lease to a cropper for a year, the landlord was to receive one-third of the corn and oats raised, to be delivered in the half-bushel. The position taken by the defendants' counsel, upon which turn the whole merits of this motion, is, that until the delivery of the third part of the crops reserved as rent, the landlord had no property in them, and that consequently trover does not lie. By the usage of the country, so long continued as to have become the law of the land, a landlord thus leasing has a lien upon or property in the growing crop until the rent reserved is satisfied. The rent is the joint production of the lessor's land and the labor of the lessee. By section 84 of Swan's Stat. 520, this lien or species of property in the landlord is recognized, and provision is made by which the interest of landlords or tenants, respectively, in the growing crop may be sold, on execution, subject to the interest or claim of the party, whether landlord or tenant, against whom the process may not issue. To preserve this lien, therefore, it is necessary to hold that the entire crop should not be removed by the tenant, or those acting in his behalf, or as successors to his rights, without first satisfying the landlord's rent. But the con368] stable, occupying the place of the tenant in this matter, seized and sold, and the purchaser carried away, the whole crop, by which the landlord's interest in it was lost. The sale wrought as to him a conversion and destruction of the whole property. The instruction to the jury, that the plaintiff could not recover if neither of the defendants intended to take more than two-thirds of the crop, was properly refused. The intention with which the act was done could not excuse them from responsibility. Their acts were an illegal violation of the plaintiff's rights, and, if arising in innocent mistake, they are responsible for the actual injury committed by them or their agent.

We think the action of trover will lie, and that the value of the landlord's share of what was taken, is the rule of damages. Motion overruled.