
    Dennis Burns, Resp’t, v. Henry Winchell, App’lt.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed April, 1887)
    
    1. Tenants in common—Agreement to raise crops.
    The parties to this action entered into an agreement, whereby the plain-' tiff undertook to plant, raise and cure a crop of tobacco on the defendant’s land, furnishing certain things necessary to be used in the process. In consideration of the faithful performance of his part of the contract, it was agreed that the plaintiff should have one-half of the tobacco. Held, that under the agreement, the parties became tenants in common of the crop of tobacco.
    
      % Same—Mat sever their portions of personal propertt in its nature DIVISIBLE. .
    
      Held, that owners in common of personal property, in its nature separable In respect to quantity or quality by weight or measure, might sever their portions of the common bulk at will.
    3. Same—Conversion—When refusal of tenant in common to deliver share is.
    
      Held, that the demand of the plaintiff for his shared the property, and defendant’s refusal to allow him to take possession thereof, constituted a conversion on the part of the defendant.
    4. Same—Chattel mortgage—Does not affect relative rights of tenants IN COMMON.
    
      Held, that notwithstanding the fact that the plaintiff, previous to the demand and refusal, had executed a chattel mortgage of the property which remained in force at that time, he owed the equity of redemption in the property, and had such an interest in it as against the defendant as entitled him to the possession of his share of the property.
    5. Same—conversion—Measure of damages. •
    
      Held, that the defendant, having sold the entire crop and made payment of the chattel mortgage resting upon plaintiff’s half of it, a verdict in the plaintiff’s favor for the difference between that sum and the plaintiff's half of the proceeds, was not excessive,
    Appeal from a judgment entered upon a verdict in the -county court of Onondaga county, and also from an order-denying motion for a new trial made upon the judges’ minutes. Upon a former appeal we granted a new trial, holding “ that plaintiff’s evidence should have been confined to the market value at the time of the conversion.”
    
      Hoyt, Beach & Hyne, for app’lt; Terry & Terry, for resp’t.
   Hardin, P, J.

On the first day of June, 1882, the parties entered into an agreement containing the following .stipulations, viz.: “That the said Burns agrees to plant about five acres of tobacco on the land of said Henry Winchell, in the town of Camillus, Onondaga county; said Burns is to do all the manual labor on said land, load all .the manure and spread the same, and what hen manure he (Winchell) has got, and the manure of two backhouses, and mix the same with leached ashes, and put the compost in the tobacco hills. He (Burns) is to do ad the work on said tobacco, cut and hang and sort and pack it in boxes, and furnish ad the plants, and find one-half of the lath for hanging, and one-half of the boxes. Said Burns agrees to do this work in a good and workmandke manner, and to do the same in season. When said Burns fails in doing the same he forfeits ad he has done, and it shall be lawful for said Winched to go and take charge of the same. Said Winched also agrees to furnish ad the team work that is required on said tobacco lot, and draw the tobacco away, and to furnish one-half of the lath and one-half of the boxes. And in consideration of the faithful performance of .such labor, said Burns is to have one-half of said tobacco.”

Undoubtedly under the agreement the parties became tenants in common of the crop of tobacco. Caswell v. Districh, 15 Wend., 379; Harris v. Frink, 49 N. Y., 24.

In the spring of 1883, the plaintiff stripped and sorted the tobacco ready for market and kept it locked up in the building where he sorted it. About the 20th of June, 1883, the plaintiff went to the building with his cases and put the tobacco in for the purpose of drawing it to market. He then found the defendant had pried off plaintiff’s lock from the door and put on another, so that the plaintiff could not get into the building, and the defendant refused to let the plaintiff have the tobacco or any part thereof, stating to the plaintiff that he had no tobacco there, and also stating to the plaintiff that he had not done his work properly, and for the first time found fault with the manner in which tne tobacco had been harvested and cured. Plaintiff testified, viz.: “ The last time I went back there I asked Winchell for my half of the tobacco there. He said I had no [tobacco there at all. He would not allow me to go in at all. I asked him to case the tobacco or divide it with me. He said I hadn’t no tobacco there at all. I said, well, I will go and see whether I can get it or not.”

We think the evidence entirely sufficient to establish a demand and a refusal, and that the conduct of the defend- I ant was such that he rendered himself liable for conversion I of plaintiff’s interest in the tobacco at the time of the de- I mand and refusal. Lobdell v. Stowell, 51 N. Y., 70.

The refusal of the defendant to allow the plaintiff to ob- I tain possession of the property, may be regarded as “ waiv- I ing the performance of any further acts ” by the plaintiff I as tenant in common. Fobes v. Shattuck, 22 Barb., 568.

In Stall v. Wilber (77 N. Y., 158), Earl, J., uses lan- 1 guage applicable to the question made in respect to the de- I mand under consideration. He says, viz.: “As to such 1 property, separable in respect to quantity and quality by 1 weight or measure, each tenant in common may demand 1 of his co-tenant, having possession of the whole, his share, ■ and upon refusal or a conversion by such co-tenant, may I sue in his own name, without joining all the other co- I tenants. Channon v. Lusk, 2 Lans., 211; Lobdell v. Stowell, 37 How., 88; S. C., 51 N. Y., 70.”

The doctrine just cited was followed in Thomas v. Williams (32 Hun, 260), where Smith, P. J., speaking for this court, said, viz.: “The parties were owners in common of the grain. It has been held in this state that owners in. common of grain, or other personal property, in its nature separable in respect to quantity and quality by weight or measure (as the grain in question here was shown to be), may sever their portions of the common bulk at will; and where one of them, having the entire property m his possession, appropriates the whole to his own use, and refuses on reasonable demand to let the other have his portion of it, he is liable for a conversion. ’’

We hold the evidence upon the trial, in the case before us, was sufficient to warrant the jury in finding a demand and refusal, and that the defendant, converted the whole of the plaintiff’s interest in the crop of tobacco It appeared upon the trial that the plaintiff, on the 4tn day of Decern - her, 1SS2, executed to John C. Monroe a chattel mortgage to secure sixty-five dollars, due in one day from date with use, “upon the undivided one-half of five acres of tobacco raised in 1SS2, which is now on the poles, and in the barn on the premises now occupied by Henry Winchell in the town of Camillus, and now remaining and being in his possession in said town.’’

Because of the execution of that mortgage the defendant, upon the trial, insisted that the plaintiff had no title or interest in the tobacco at the time of the demand and refusal. It appeared in the evidence that the mortgagee had never demanded the money on his mortgage, nor taken possession «of the mortgaged property.

Notwithstanding the execution of that mortgage by the plaintiff, he owned the equity of redemption in the property and had such an interest in it as against the defendant that he had a perfect right to the possession thereof at the time of the demand and refusal. Marsden v. Cornell, 62 N. Y., 215; Green v. Clarke, 12 id., 343.

Giving the chattel mortgage to Monroe in rko manner enhanced the defendant’s rights in the property, and defend - ant failed to connect himself with the title or interest of Monroe in the property, except by a subsequent arrangement made after the demand and refusal to the effect that when the property "was sold the mortgage would be paid out of the interest of the plaintiff in the proceeds. Such payment appears to have been made, and the recovery had in this case is only for such sum as is equivalent to the proceeds of plaintiff’s half' after paying therefrom the mortgage in question. . Monroe had entered into an arrangement that he would wait for the pay on his mortgage until Burns sold the tobacco, and after that arrangement Burns had bestowed considerable labor upon the property covered by the mortgage during the winter and in the spring in stripping, sorting and re-sorting the tobacco. In effect, there was an understanding between the plaintiff and the mortgagee that the mortgage should not be enforced until the tobacco was turned into money and the proceeds could be applied thereon.

Under such circumstances we are of the opinion that the plaintiff had an interest in the property, and as against the defendant the right to the possession thereof, and that the defendant’s conversion was wrongful. Bowen v. Fenner, 40 Barb., 383.

It appears by the evidence in the case that the defendant sold the whole crop as his own, and in his answer and upon the trial he sought to assert a claim to the whole crop, and insisted the plaintiff had forfeited his right to any part thereof under the contract. According to the evidence of Monroe the defendant never acquired any right to the prop erty in virtue of the mortgage. He did not take an assignment of the mortgage. He liad notice before he sold the tobacco to Skinner that Monroe held the mortgage All the parties acted upon the assumption that when the property was sold and turned into money, that out of Burn’s half of the proceeds the mortgage should be paid. Such payment was made, and, as before remarked, the verdict in this case is only equivalent to the balance of the proceeds.

In the course of the charge the trial judge submitted to the jury to find whether the plaintiff had failed to perform his duty as required by the agreement in respect to the tobacco, and whether the failure was such as was contemplated by the agreement under which the defendant would be warranted in taking possession of the tobacco in question. The verdict of the jury is adverse to the defendant on that question.

The trial judge observed, viz.: “ It is a question of fact. It is a question in determining which you will have to re-, view all of the evidence relating to the way this tobacco was cultivated and cured and handled down to that time. The defendant was protected by the agreement by the insertion of the clause which allowed him, whenever there was a failure, to take possession of the property, and before you find that he had a right to take possession of the property at the stage when it is said that he did take possession and convert it, you must find that Burns himself had failed in his duty.”

W e think that the question was presented sufficiently favorable for the defendant to the jury. Their verdict is adverse to the defendant upon that question as well as upon all other questions of fact in the case. We see no error in the progress of the trial which should lead us to disturb the verdict. Judgment and order affirmed, with costs.

Boardman and Follett, JJ., concur.  