
    [No. 6268.]
    JOHN VAN VALKENBURG v. JOHN F. McCAULEY.
    Damages eob Tbespassibg Actuals.—In an action for damages caused by the trespassing of cattle upon grain, whether the action he in the nature of trespass, or founded upon an express promise to pay such damages, it is error to instruct the jury that if one man’s stock trespasses upon another’s grain, the law implies a promise on the part of the owner of the stock to pay all damages done.—[Bbpqbteb.]
    
      Appeal from the District Court of the Fifth Judicial District, San Joaquin County.
    This action was brought to recover three thousand dollars damages, alleged to have been done to the plaintiffs growing crops by the defendant’s stock. The defendant leased a tract of land to the plaintiff to be sown in grain. The plaintiff was to have three-fourths and the defendant one-fourth of the crop. While the crop was growing, it was damaged by the trespass of stock. The plaintiff obtained a verdict and judgment for one thousand two hundred and thirteen dollars and twenty-four cents. The defendant moved for a new trial, which motion was denied. The defendant appealed.
    Terry, McKinne & Terry, for Appellant.
    
      F. T. Baldwin and J. C. Campbell, for Respondent.
   By the Court:

The Court below gave the following instruction to the jury : “ Where one man’s stock trespasses on another’s grain, the law implies a promise on the part of the person owning the stock to pay whatever damages the party may have sustained by reason of such trespass, and it is not necessary that an express promise be proved in order to entitle the plaintiff to recover.”

There is no count in the complaint for grain sold and delivered by plaintiff to defendant, or for pasturage. It is therefore unnecessary to decide whether a tort such as is set forth in the complaint can be waived, and a plaintiff recover in assumpsit. The complaint herein is either a declaration in trespass, or it alleges an express promise to pay the amount of damages done after the injury was consummated. Upon either construction of the complaint the instruction was manifestly wrong.

Judgment and order reversed, and cause remanded for a new trial. Remittitur forthwith.  