
    Charles R. Crosby, Respondent, v. Delos A. Woleben, Appellant.
    Fourth Department,
    March 6, 1912.
    Real property — landlord and tenant—lease of farm "on shares — right ' of tenant to sell interest in unripe fruit — termination of lease — rights of vendee.
    A tenant renting a farm on shares under an agreement whereby he was to pick and pack the grapes grown thereon, to furnish one-half the packages for marketing them and to deliver them at a shipping point, and in return was to receive one-half the proceeds from their sale, can sell his share of the grapes when the same come into existence, although they may not be sufficiently ripe to pick.
    Under the agreement the tenant and the owner of the farm were tenants in common of the grapes which, as soon as they came into existence, were personal property.
    The termination of the contract of letting by the owner and tenant before the grapes were picked did not extinguish the interest in the grapes which the tenant’s vendee had acquired by the bill of sale which he had duly filed.
    Where the owner, with knowledge of the bill of sale given by the tenant, terminates the contract of letting and appropriates the whole crop of grapes to his own use, he is liable in conversion to the tenant’s vendee for one-half .the value thereof less one-half the expense of harvesting and marketing them.
    McLennan, P. J., and Kruse, J., dissented, with opinion.
    Appeal hy the defendant, Delos A. Woleben, from a judgment of the County Court of Chautauqua county in favor of the plaintiff, entered in the office of the clerk of said county on the 22d day of July, 1911, upon the decision of the court rendered after a trial before the court without a jury.
    
      
      William S. Stearns, for the appellant.
    
      Nelson J. Palmer, for the respondent.
   Spring, J. :

The action is in conversion. On the 31st day of August, 1906, the defendant entered into a written agreement with John E. Stehbins for the letting on shares of a farm of 120 acres, of which the defendant was the owner, and for the period of five years from the first day of March following. Stebbins went into possession in pursuance of the agreement and continued to carry on the farm until about the 1st of October, 1909. A considerable portion of the farm was devoted to the cultivation of grapes. By the terms of the agreement Stebbins was to “pick and pack the grapes,” to furnish one-half of the packages for their marketing and to deliver them to a shipping point in the town of Portland, in which the farm was situated, and each was to have one-half of the amount received for the same.

On the 21st of August, 1909, Stebbins owed the plaintiff for a store account and also by reason of a promissory note given by Stebbins to him and which had been indorsed and negotiated at a bank by the plaintiff, and the aggregate indebtedness was about $210. On that day Stebbins executed and delivered to the plaintiff a bill of sale of an undivided one-half of said grapes, which were then on the vines but not sufficiently matured for picking, and said instrument was forthwith filed in the office of the clerk of the said town, and the defendant very soon thereafter was personally informed of the giving of said bill of sale and of the consideration inducing it.

On the 27th day of September, 1909, the defendant and Stebbins entered into a written agreement terminating the original contract and providing that Stebbins should remove from the farm on or before October fourth, and that the defendant “ shall retain all crops harvested and unharvested.” The plaintiff demanded one-half of the grapes, offering to pay one-half the expense of picking and marketing the same in accordance with the terms of the contract of letting. The defendant repudiated the plaintiff’s title and gathered and sold the grapes, and thereafter this action was commenced. The county judge allowed the plaintiff for one-half of the money received for the entire crop, deducting therefrom one-half the disbursements incurred in harvesting and delivering them to the market.

I think he reached a correct conclusion. The grapes were in existence at the time the bill of sale was executed, and they were capable of division by measure or weight and in accordance with the mode of gathering grapes in vogue in that locality.

The defendant and Stebbins were tenants in common of these grapes. (Rice v. Peters, 128 App. Div. 776; Dinehart v. Wilson, 15 Barb. 595; Taylor v. Bradley, 39 N. Y. 129; Reynolds v. Reynolds, 48 Hun, 142; Underhill Landl. & Ten. 311.)

The grapes were personal property. Stebbins was the owner of an undivided one-half of them on the vines and, consequently, could dispose of or make subject to a lien his interest therein. (Sexton v. Breese, 135 N. Y. 387, 391; Stall v. Wilbur, 77 id. 158; Beck v. McLane, 129 App. Div. 745; affd., 198 N. Y. 567.)

The termination of the contract of letting by the defendant and Stebbins did not operate to extinguish the interest in the property which the plaintiff had acquired by the bill of sale. (Tiffany Landl. & Ten. 1349 et seq.; Eten v. Luyster, 60 N. Y. 252, 259; Weiss v. Mendelson, 24 Misc. Rep. 692; Dobschuetz v. Holliday, 82 Ill. 371.)

The defendant is responsible for the relation which operated to vest title to an undivided one-half of the grapes in Stebbins. I appreciate where an occupant terminates the contract of letting during its life, or abandons the occupied premises and has sold or permitted a lien to be created upon his share of the crops, an injustice may thereby inure to the owner of the farm. The owner can easily protect himself from such a mishap by apt provisions in the contract. If he makes the cropper or occupant the owner of a definite part of the products of his farm he must expect that third parties who act in reliance upon the ownership for which he is responsible and to which they have duly succeeded, may maintain their claims. In this case the defendant knew of the bill of sale before the contract of termination was entered into, and yet his rights were well guarded by the court in that whatever expense would have been paid by Stebbins in picking, preparing for and delivering the grapes to market was allowed to him. He refused to divide the grapes with his cotenant, the plaintiff', and appropriated the whole crop, and was, therefore, hable in conversion to the plaintiff. (Gates v. Bowers, 169 N. Y. 14, 17.)

The judgment should be affirmed.

All concurred, except McLennan, P. J., and Kruse, J., who dissented in a memorandum by McLennan, P. J.

McLennan, P. J. (dissenting):

I dissent upon the ground that the tenant Stebbins, having failed to perform his contract of hiring of the farm in question and having abandoned such contract, had no right, title or interest in or to the produce of such farm, and that his assignment to the plaintiff did not vest him with any interest in the same. The agreement between the landlord and the tenant is not an -unusual one. It provides in substance that the tenant shall do all the work in preparing the crop for harvesting and in harvesting the same, and that then the profits of such crop shall be divided equally between the landlord and the tenant. In this case the tenant abandoned his lease or contract after having assigned his interest therein to the plaintiff. The plaintiff made' no attempt to carry out and perform the conditions imposed upon the tenant, but waited until the landlord had done and performed at his own expense all the things which the tenant had agreed to do and perform. Then, apparently, there being a profit, the assignee of the tenant assumes to recover one-half of such profit. I think the conclusion reached by the court below is repugnant to our ordinary sense of justice, and that it cannot be supported by any principle of law.

I conclude that the judgment should be reversed and a new trial granted, with costs to the appellant to abide the event.

Kruse, J., concurred.

Judgment affirmed, with costs.  