
    KAUFFMAN VS. SCHAEFFER.
    Where a farm is leased upon shares the crop is to be harvested and then divided.
    The tenant may maintain trover against the landlord, for taking away a portion the crop before division.
    Error to the Common Pleas of Berks County. No. 52 Jan. Term, 1884.
    This was an action of trover and conversation brought by Frank S. Schaeffer against Daniel K. B. Kauffman for certain corn fodder. The charge of the Court was' as follows, per:
    Albright, P. J.
    Gentlemen of the Jury :• — -The action you have been called to try, is one brought by Frank S. Shaffer against Daniel K. B„ Kauffman'. It comes into this Court under an appeal from a Justice of the Peace. Before the Justice of the Peace, it was an action of trover and conversion. Where a party has the title or right to the possession of personal property, and another takes from him, there an action may be brought for the conversion of the goods thus wrongfully taken, and if the plaintiff has made out his case he is entitled to damages for that unlawful conversion.
    The first question then is : Did the plaintiff have the title or the right to the possession of the corn fodder in question ? The allegation here is, that the defendant unlawfully took two loads of corn fodder, which it is said by one of the witnesses, amounted to 49 shocks of 16 sheaves each. For that unlawful taking of this corn fodder, the plaintiff brings this suit.
    
      It appeal's that the wife of Frank Shaffer was the ownof of a púoce of land in Oley township, and that she, joined by her husband, made an assignment of her property to ’Squire Mauger for the benefit of the creditors of Mrs. Shaffer. It appears further by the testimony of all the witnesses on that point, that after the assignment, ’Squire Mauger entered into a contract with the husband, for the farming of that piece of land. This assignment, it is said, was made on the 23rd of April, 1881.
    Mr. Shaffer testifies that the arrangement was, that he (Shaffer) was to farm it for the shares, — for half of all the grain. ’Squire Mauger says' that the arrangement was to farm the place on shares ; that he was to have one-half of all the crops raised. The plaintiff claims that the meaning of this agreement was, that Shaffer, the tenant, so as we call him in law, the lessee, was to have half the corn in grain, and one-half of the corn fodder' I say to you as a matter of law, that if the contract was as testified to by Mr. Shaffer and Mr. Mauger, then he was entitled to half of the fodder and half of the grain. This then was the contract between the parties: Shaffer was to have half of the corn fodder and half of the grain.
    It appears that on the 26th of July, 1881, the assignee held a sale of the land in question, and it was struck down to Mr. Kaufman, the defendant, who signed the agreement to ’comply with the conditions of sale. By that agreement, the- portion that was not to be paid down, was to be paid on the 5th of September following. It has been testified to, that the agreement was not carried out on the 5th, but on the 20th of September, and the deed was then given. Both Mr. Kaufman and the assignee were willing to extend the time from the 5th to the 20th of September, and the defendant, Kaufman, is in the same position, so far as the question in this case are concerned, as if he had complied with the conditions on the fifth. This sale was consummated, the purchase money paid, and the deed was given, and all that attended to before the taking of the corn fodder in question. So, gentlemen, Mr. Kaufman, the purchaser, fulfilled the conditions of the sale, and whatever rights he acquired bj that purchase on the 26th of July, he is entitled to as against the plaintiff in this case.
    
      What were his rights? So far as the corn fodder is concerned, he succeeded to the rights as landlord of Mr. Mauger.
    He stood in the shoes of Mr. Manger" in this respect, by becoming the purchaser of the land, he had the right to ask at the hands of the tenant, everything that Mauger could have asked, if Mauger had not sold the land up to the time this corn fodder was harvested. In the condition of sale, it was stated that the one-half of the corn fodder, and grain in seed, of the 162 acre tract, should go with the land. That must be understood to mean, gentlemen, that Mauger, the assignee, who was making the sale, gave to Kauffman, the purchaser, so far as the corn fodder was concerned, just what he (Manger) had. He could not change the contract between him and Shaeffer. That would have required Shaeffer’s consent.
    Some testimony was received upon offer of the plaintiff, to show that Mauger and Shaeffer afterwards made different arrangements about this corn fodder; that it was made after the sale, sometime in September, and was to the effect that it should be divided by striking a line in the field, and what stood on one side was to be Shaeffer’s and the other half Mauger’s. If nobody else had anything to say in the matter, they could have made any contract they pleased, but at that time the land had been already sold to Kauffman. After Mauger had sold the land, he could not make any new contract to bind the purchaser. I say to you that you shall not regard the evidence as to what Mauger and Shaeffer agreed to after the sale to Kauffman, and you take the contract just as they made it in April, and you will take it as a fact, that whatever right Mauger had under the contract in April, the landlord had. The right was, that he should have one-half of the corn fodder, and one-lialf of the graiu. What is meant when a tenant farms for the shares, where he is to return one-half of the crop, is, that when the crops have been harvested, then a division is to be made.
    It does not moan that the tenant can take his one-half at one end or corner of the field, and carry it away before a division is made and it does not mean that the landlord can take his half and leave whatever he pleases. It means that a division shall be made and the division of course must be made on the basis of quantity in the case of the grain itself, taking the good and bad-together if it does iiot run even, the landlord to have half and the tenant half. In the case of corn fodder, this would mean taking the good and bad together, if there was a difference in quality, and dividing it; (I say to you further, as a matter of law, that up to the time of a division or up to the time that a ■division should have been made, (the tenant refusing to divide) the crop being in his possession, he has sufficient title in it to authorize him -to maintain an action of trover, which as I have said before, requires that the plaintiff either has the title or the right, to the possession at the time the suit was brought.) It has been said that this fodder was taken on the 15th of October, and I believe there is no dispute as to the date. It has also been said by the plaintiff, I believe, that at that time, the half of it was cut and standing in shock, and the other half was to have been cut; whether it had been husked or not we do not know. If the arrangement already referred to as having been made between the plaintiff and Mauger was made after the sale of the land, then the arrangement so far as Mr. Kaufman was con•cerned, goes for nothing. But, gentlemen, at the time Mr. Kaufman took this corn fodder (it seems hardly disputed that he did take it) there had been no division made, and it does not appear ’'in this case that he had demanded a division at the hands of Mr. •Shaffer. If it were proved that he had demanded a division, when this corn, fodder was in condition to be harvested, and that ■Shaffer had unreasonably reiused to make a division, and that Kaufman had then taken it away, I would say to you that the •plaintiff could not recover. I remember no testimony from which you could find that they made a division, and I find no testimony that Mr. Kaufman demanded and Shaffer refused to •divide. (I therefore say to you that the taking of the corn fodder, if you find it is . true that the defendant did take it, •entitles the plaintiff to recover, because Mr. Kaufman’s taking without a division, what he supposed belonged to him is just as wrong as Shaffer’s alleged arrangement, that he would cut off his half, shock it, and let the rest stand.) That he could not do. • (If you find that the corn fodder was taken by defendant, I say vto you that the plaintiff is entitled to recover.)
    
      How much shall the plaintiff recover ? It will be the value of the corn fodder at the time and place it was taken. You are to say from the testimony in the case, if you can, what it' was worth at the time, and for the value of it the plaintiff is entitled to recover. You are not bound to take the price at four cents per sheaf, unless you are satisfied that that price mentioned by ■one of the witnesses was the market value. If however you find that that was what it was worth in the market at' the time it ■was taken then you can adopt that as the basis upon which to figure out what the amount would be. The amount at that price would be $31.36.
    The plaintiff claims, that in addition to that sum, he is entitled to interest, and points have been put to the Court covering that question. I cannot say to you as a matter of law, that ‘the plaintiff in an action of- tort, is entitled to interest. If the plaintiff is entitled to recover, it does not follow that he is entitled to interest. Plaintiff claims that he is entitled to exemplary damages. In an action of trover, where the plaintiff is ■entitled to recover, he may recover in addition ■ to the value of the goods, what are called exemplary damages, but they can only be given by a jury, where they'are satisfied -that the defendant was guilty of a willful wrong, or of a fraud or outrage. I cannot say to you that you shall not find there was a willful fraud or outrage committed upon the part of the defendant, but I do say to you, you must not give anything in the form of exemplary damages, unless you are satisfied from the evidence in the case, that the defendant did a willful wrong, of was guilty either of fraud or outrage. Did he intend to do what was wrong ? Did he intend to act oppressively as against this defendant, or .was he simply taking what-he thought he-was entitled to?’ I see no harm in my stating to you that if Mr. Kaufman found that the plaintiff was going to divide this crop by cutting off his half, ■shocking it and taking it away, and letting the. other half stand, that he could say that he would stand no division of that character. "Whether he knew he was doing wrong, is for you to say. If he thought he was simply taking what he had a right to, then, under the facts of this case, there would be no proof of a willful wrong. If you find there was. fraud, oppression or outrage, you can add some reasonable sum to the value of the goods, as exemplary damages. If that is not shown, then you will only give the plaintiff what you will find the value of the goods tó be, when you come to assess the damages.
    It appears that the goods -were demanded after Mr. Kaufman took them away, but you must bear in mind that Shaffer in that notice took the position that the corn fodder was his exclusive property. It was not his exclusive property to take his share at one end of the field or the other. There had to be a division, I therefore see nothing in demand which would entitle the plaintiff to exemplary damages.
    You will take this case, and if you believe that the plaintiff-has shown what I have said is necessary to recover, you will return a verdict in favor of the plaintiff and will say for what amount the verdict is to be.
    On December 12, 1882, verdict for plaintiff for $31.36. A motion for a new trial was made and discharged on the 22d of Sept., 1883, in the following opinion per:
    Albright, P. J.
    Mauger, the assignee for the benefit of creditors, while the title to the farm was in him, contracted in the spring of 1881, with the plaintiff, that the latter should put out the crop of Indian corn upon shares — to render one-half to the lessor. The subsequent sale of the farm to the defendant could not deprive the plaintiff of his interest in the crops then growing. Defendant succeeded to the rights of his vendor, nothing more.
    If it be conceded that plaintiff was only a cropper, the defendant had no right to take away a portion of the corn fodder before a division had been made; Stafford vs. Ames, 9 Barr 343.
    It devolved upon the plaintiff to harvest the crops. Defendant’s sole right was, after the harvesting, to receive the half of the grain and the straw. Defendant had no right, without the plaintiff’s consent to remove the fodder which he took away, even if what he appropriated was less than half. It is probable that it was the same, over the whole field, in quality, but this cannot be assumed. Owing to difference in soil, the kind planted, or the manner of cultivation, the quality of the fodder may have differed in various parts of the field. In the absence of proof that the plaintiff had unreasonably refused to make a division, or to agree to one, the defendant’s taking of the fodder was unlawful.
    What was held in Lehr vs. Taylor, 9 N. 381, was in recognition of what had been- ruled in Stafford vs. Ames. In Lehr vs. Taylor, by the contract of leasing, the landlord had the right of possession of the crop until it had been divided ; therefore the tenant could not sue in trover, although the landlord had refused to allow him to take his half of the crop.
    Here the plaintiff had the right of possession when the fodder in question was taken. The case of Stafford vs. Ames is authority for holding that under the facts the plaintiff was entitled to recover, and that trover was the proper remedy.
    The contention of defendant’s counsel that plaintiff and defendant were tenants in common, and therefore the action was not maintainable, cannot be assented to. They were not tenants in common, but their relation was that of landlord and tenant.
    None of the reasons for a new trial are sustained.
    Now, September 22, 1883, the rule for a new trial is discharged
    Kauffman then took a writ of error, complaining of the answer to the plaintiff’s third point, which together, with the answer, was as follows: That under the uncontradieted evidence in this case, the plaintiff is entitled to recover. Answer affirmed, provided you find the contract of leasing, was as testified to by plaintiff and Maugér. He also assigned for error, the portions of the charge in brackets.
    
      H. Y. Kauffman and Frank R. Schell, Esqs., for plaintiff in error
    argued, that trover would not lie in such a case, where the parties were tenants in common ; Bennet vs. Bullock, 35 Penna. 367; Trout vs. Kennedy, 47 Penna. 387; Walworth vs. Abel, 52 Penna. 370; Keisel vs. Earnest, 21 Penna. 90; Penna. R. R. Co. vs. Hughes, 39 Penna. 521; Lehr vs. Taylor, 90 Penna. 381.
    
      
      Stephen M. Meredith and Daniel E. Schroeder, Esqs., contra,
    argued that the relation of tenants in common did not exist between the parties of this case. Kauffman only succeeded to the rights of B. Mauger, the assignee; Johnston vs. Smith, 3 P. & W. 496. Under the terms of the agreement between Mauger, the assignee, and Schaeffer, for the latter to farm the place on shares, Mauger or his vendee, Kauffman, had no title to any part of the corn fodder, until its division and delivery by the tenant; Ream vs. Harnish, 45 Penna. 376.
   The Supreme Court affirmed the judgment of the Common Pleas on the 17 March, 1884, in the following opinion:

Per Curiam.

Under the evidence this was clearly a ease for the jury. The crop was in the exclusive possession of the tenant. He was to yield to his landlord in payment of his rent, a certain proportion of the crops grown thereon. Until the division was made the landlord had no right against the will of the tenant, to take and remove any specific portion of the crops.

Judgment affirmed.  