
    COOK v. SEAY.
    (Court of Civil Appeals of Texas. Amarillo.
    March 16, 1912.)
    LANDLORD AND TENANT (§ 331) — CONSTRUCTION.
    Plaintiff purchased a quarter section from defendant upon which defendant had sown 37 acres of-wheat, and the parties agreed that defendant should harvest and thresh the wheat and pay to plaintiff at the thresher one-third of the wheat threshed as rent. Held, that on defendant’s breach of contract plaintiff could recover the market value of one-third of the wheat threshed at the place it was threshed, with interest thereon from the time of threshing.
    [Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ 1360-1362, 1379-1387; Dee. Dig. § 331.]
    Appeal from District Court, Hemphill County; F. P. Greever, Judge.
    Action by G. W. Seay against Jim Cook. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    See, also, 143 S. W. 676.
    J. C. Dial, of Miami, and Hoover & Taylor, of Canadian, for appellant. Jno. A. Holmes, of Miami, for appellee.
    
      
      Por other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes
    
   GRAHAM, C. J.

This suit originated in the justice court of precinct No. 1, Hemphill .county, by appellee, G. W. Seay, suing appellant, Jim Cook, for the sum of $115.75, with 6 per cent, interest from June 30, 1910. On July 25, 1910, appellee recovered in said justice court a judgment against appellant for the sum of $115.75, from which judgment appellant prosecuted an appeal to the district court of said county, and on a trial of the cause on its merits in the district court on September 6, 1910, before the court without a jury, judgment was rendered in favor of appellee and against appellant for the sum of $120.37, with interest at 6 per cent, from date of said judgment. From this last judgment an appeal has been prosecuted to this court, and appellant submits same on five assignments of error indicated below.

At the instance of appellant, the trial court prepared and filed below his findings of fact and conclusions of law, as follows:

“Findings of Facts. — (1) I find that on or about October 1, 1909, plaintiff purchased from defendant, Jim Cook, 160 acres of land, situated in Hemphill county, Tex., upon which land defendant had sown 37% acres of wheat, and that after the purchase of said land by plaintiff, the plaintiff and defendant entered into a contract, by the terms of which defendant was to have 37% acres of wheat, harvest and thresh t-he same, and pay to plaintiff at the thresher and as soon as the wheat was threshed one-third of the amount of wheat threshed off of said land as rent. (2) I find that the defendant harvested said crop and threshed the same about the 30th day of June, 1910, and that said crop produced 450 bushels of wheat; that plaintiff was at said thresher to receive one-third of the wheat; and that defendant refused to deliver to him any part thereof. (3) X further find that the market value of this wheat was 90 cents per bushel at the thresher, and that one-third of the 450 bushels produced would amount to 150 bushels, the amount claimed by plaintiff as rent.
“Conclusions of Law — I conclude as a matter of law that the plaintiff was entitled under his contract with defendant to one-third of the wheat threshed as rent, and, the defendant having refused to deliver one-third thereof to plaintiff, the plaintiff would be entitled to a judgment against defendant for the market value of one-third of the wheat (150 bushels) at the place where same was threshed, with interest thereon from June 30, 1910. (2) The plaintiff, having sued for one-third of the amount of wheat threshed at the market value of 75 cents per bushel, would be entitled to recover from defendant for 150 bushels of wheat at 75 cents per bushel, amounting to $112.50, with interest thereon from June 30, 1910, at 6 per cent, making a total judgment in favor of the plaintiff and against the defendant in the sum of $120.37.”

There is also a statement of facts on file in this court, agreed to by counsel for appellant and appellee, and approved by the trial court, which shows to have been filed in the court below within the proper time.

Appellant’s assignments of error are as follows: “No. 1. The court erred in his first finding of fact. No. 2. The court erred in his second finding of fact. No. 3. The court erred in his third finding of fact. No. 4. The court erred in his first conclusion of law. No. 5. The court erred in his second conclusion of law.”

We have examined carefully the statement of facts in connection with appellant’s contentions made under his first, second, and third assignments of error, and find no merit in either of said assignments.

While there is some conflict in the evidence on the issues of fact disposed of by the trial court, we find ample evidence in the statement of facts to sustain each finding of fact made by the trial court, and we therefore adopt the trial court’s findings of fact as copied above.

We have also examined the findings of fact as made by the trial court -in connection with the trial court’s conclusions of law as a means of properly disposing of appellant’s fourth and fifth assignments of error, and ha-ve concluded that the findings of fact as made by the trial court are abundantly sufficient to support the conclusions of law reached and copied above.

We also believe that the trial court’s findings of fact and conclusions of law support the judgment rendered below, and while ap-pellee urges on this court that the judgment of the trial court under the record should be affirmed with 10 per cent, damages, we have reached the conclusion not to allow the damages as asked, but, finding no error in the record for which the judgment should be reversed, the same will be in all things affirmed, and it is so ordered.  