
    John Preston, App’lt, v. Henry Smallwood, Resp’t.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed October 21, 1892.)
    
    Contract—Breach—Agreement to work earm on shares.
    The parties hereto entered into an oral agreement by which plaintiff was to work defendant's farm on shares for five years, but defendant refused to sign the agreement when reduced to writing. Plaintiff some months after taking possession learned that defendant was not satisfied with his management of the farm and inquired the cause of dissatisfaction. Defendant refused to give anything to induce him to leave, and told him he did not know enough to work the farm, and that he had better get off from it, and the sooner the better. Held, that this did not justify plaintiff’s leaving the farm; that he should have remained and performed' his part of the agreement, and that he had no right of action for breach of the contract as an executory one.
    Appeal from a judgment entered in the county of Chautauqua upon an order of the county court of that county non-suiting the plaintiff. No motion for a new trial was made.
    
      S. W. Mason, for app’lt; A. B. Ottoway, for resp’t.
   Lewis, J.

This action was brought to recover damages for breach of contract.

The parties entered into an oral agreement in the month of February, 1891, for the leasing of the defendant’s farm to the plaintiff for the term of five years to be worked upon shares, each, party to have one-half of the proceeds of the land and stock or the farm. It was understood that the agreement was'to be put in writing, but that was never done. The plaintiff took possession of the farm in March, 1891, the defendant reserving the right to occupy two rooms in the farm house. The plaintiff heard rumors that the defendant was not satisfied with his management of the farm, and in the month of August, 1891, he called upon the defendant and inquired of him as to the cause of his dissatisfaction. The defendant told him he could not work the farm; and what-occurred between the parties which the plaintiff claims justified him in leaving the farm and abandoning the contract, was testified to by him as follows :

“I (meaning plaintiff) said if you are 'dissatisfied with me on this farm what will you give me to get off from here; he said, I won’t give you a cent. He said, what will you give me for damages for coming on here ? He said, if you were worth anything I would sue you and collect damages of you. Then I asked him what share of the crops he would give me, and he said I had not got any crops there. He said the sooner you get off from the farm the better it will be for you and me both. He said you cannot get off any too quick to suit me. He said that he had done all the work that was done there all summer. As long as he had told me to get off from the farm I moved off. Mr. Smallwood told me at the time we had the conversation in the barn in August that I couldn’t work the farm, that I had better get off from it. He said that I did not know enough to work the farm. He toldi me to get off from the fárm, and said that I could not work it.”

The plaintiff caused the agreement for leasing the farm to be put in writing and requested defendant to execute it, and he refused.

The county court held, and we think correctly, that what occurred, as testified to by plaintiff, did not justify him in abandoning the farm. Mortimer v. Brunner, 6 Bosw., 659; Ogilvie v. Hull, 5 Hill, 52; Edgerton v. Page, 20 N. Y., 281; Code of Civ. Pro., § 1515.

The plaintiff should, notwithstanding the dissatisfaction of the defendant, have remained in possession of the farm and performed' his part of the agreement; instead of so doing he abandoned the premises and neglected to perform on his part, and therefore he-cannot recover of the defendant for his interest in the crops. Graves v. White, 87 N. Y., 463; Kiplinger v. Green, 28 N. W. Rep., 121; 61 Mich., 340 ; Reynolds v. Reynolds, 48 Hun, 142 ; 15 St. Rep., 464.

Plaintiff had no right of action for breach of the contract' as an executory one. English v. Marvin, 55 Hun, 47; 28 St. Rep., 68.

We find no errors in the rulings of the trial court.

The nonsuit was proper and the judgment appealed from should he affirmed.

Dwight, P. J. and Macomber, J., concur.  