
    Burdick vs. Washburn.
    The defendant, being the owner of a farm, entered into an agreement with the plaintiff, by which it was contemplated and intended that the latter should take and cultivate such farm, and receive and maintain upon it certain live stock, for their joint and mutual profit and advantage. As his share of the joint adventure, the defendant furnished the farm, the live stock, and certain parts of the seed grain and grass seed, and the plaintiff was to supply the residue and perform the labor, and devote the care required for carrying on the farm, and providing for and taking care of the stock and its increase ; to deliver to the defendant one half of all the products of the farm; and to leave upon the farm, at the expiration of his term, the same amount of live stock he received from the owner; but there was no express provision made as to the hay which should be raised on the farm.
    
      Held that the enterprise, though not a partnership, was in the nature of one; the leading .object being to place the plaintiff in a situation where he could work the farm on shares, and to-secure the joint benefit and profit of the parties. That the plaintiff therefore had the right to feed out the hay, on the farm, to the stock specified in the agreement to be kept on the farm; and if there was any excess of hay remaining, after he had performed all his obligations under the agreement, it belonged to him, and not to the defendant.
    And the plaintiff having been, before the expiration of the term, dispossessed by the defendant, on the alleged ground that the former was, in violation of the agreement, feeding his own horses on hay cut upon the farm; Held that the defendant was liable to the plaintiff for the value of the excess of hay beyond what was required to feed the stock mentioned in the agreement.
    THIS action was originally brought in a justice’s court, in the county of Allegany, and upon the trial before the justice the plaintiff recovered a judgment exceeding the sum of fifty dollars. The defendant appealed to the county court, where a new trial was had, and the plaintiff was nonsuited. A motion was made for a new trial, in that court, upon exceptions taken at the trial, which motion was denied, and from the order denying the motion, the plaintiff appealed to this court.
    
      Hakes Stevens, for the appellant.
    
      W. M. Hawley, for the respondent.
   By the Court, Daniels, J.

The plaintiff claimed, upon the trial of this action, that he was entitled to recover the value of a quantity of hay, which it was alleged that the defendant had converted to his own-use. The hay had keen cut by the plaintiff upon a farm which the defendant owned, and had let to the plaintiff, by an agreement dated on the 14th of July, 1862. By the terms of the agreement the plaintiff was to have the farm, except the house and garden, together with four cows, two yearling heifers and two steer calves, until the 1st of April, 1865, and to furnish the grass seed for seeding down the land broken up at the date of the agreement, and one half that was required to seed_ down such land as should he afterwards broken up. For which the plaintiff agreed to do all the work upon the farm, work it in a workmanlike manner, and trim the orchard. He also agreed to seed down the land required to be sown with grass seed, and furnish half the seed for that which should be broken up after the making of the agreement, and half the seed grain, and to deliver one half the grain, potatoes, &c. in the half bushel, and one half the butter, cheese, &e., together with one half the growth of the stock, to the defendant. The plaintiff was to have his firewood from the farm, and one half the apples and cider.

The plaintiff' had possession of the farm, and carried it on, under the agreement, until the 7th of January, 1863, when the defendant entered upon it and turned him out of possession. Previous to that time the defendant had fed his team from the hay cut upon the farm, which the defendant claimed was in violation of the agreement, and on that account he dispossessed him. The hay in question remained upon the farm, and was afterwards consumed hy the stock placed upon it under the agreement, and a span of horses belonging to the defendant. By the terms of the agreement the defendant was entitled to have one cow and one horse kept upon the premises. This use of the hay the county court held to be justified by the agreement, and therefore nonsuited the plaintiff.

Eb express provision is contained in the agreement, relating to the hay that should be raised upon the farm, or indicating what should be done with it by the plaintiff. Whatever his obligations were in that respect must be determined constructively or inferentially from the subject matter to which it related, and the provisions contained in it. And to reach such determination, the circumstances should be considered under which the parties made and entered into the agreement. This is a well settled and familiar rule. (Springsteen v. Samson, 32 N. Y. Rep. 703.)

At that time they contemplated and intended that the plaintiff should take and cultivate the defendant’s farm, and receive and maintain upon it certain live stock, for their joint and mutual profit and advantage. As his share of the joint adventure, the defendant furnished the farm, the live stock, and certain parts of the seed grain and grass seed. While, as an equivalent for that, the plaintiff was to furnish and supply the residue, and perform the labor and devote the care required for the purpose of carrying on the farm, providing for and taking care of the stock and its increase, in a workmanlike manner, and to, leave upon the farm, at the expiration of his term, the same amount of live stock he received from the defendant. The enterprise, though' not a partnership, was in the nature of one. The object was to secure the joint benefit and profit of the parties, each contributing certain means to the production of that result.

The leading object was to place the plaintiff in a situation where he could work the farm on shares. And the stock was placed upon it to enable him to secure the increase and make the butter and cheese, which were to be divided equally between himself and the defendant. The stock was to be sustained upon and by the farm, which could only be done by feeding to it the hay.raised upon' the farm, so far as that was necessary for that purpose. If, instead of the hay being produced from the farm, the parties had mutually agreed to supply it by joint purchase, for the same purpose, there would be no question made but that they would own it as tenants in common. And there can be no legal or substantial difference between the effect of such a purchase and the production of it in the manner contemplated by this agreement, for it resulted from the joint means of the plaintiff and defendant; one contributing the land, and the other the labor that produced it. Instead of delivering one half the hay directly to the defendant, as the plaintiff covenanted respecting the grain, potatoes, apples, cider, and increase of the stock, he undertook to deliver to him one "half the result of it in the form of the butter and cheese that should be produced by it, which was only another form of giving the defendant one half the hay required to keep the stock. In that manner he would have the benefit from it, just as much, and probably more so, than he would if one half the hay had been delivered over to him. The plaintiff covenanted to work the farm in a workmanlike manner, which could' only be performed, in this respect, by feeding the stock he was to keep upon it, with the hay produced by it. Under this view of the agreement, the defendant’s interest in the hay was the same, in effect, though not as direct as that which it secured to him in the grain, apples and cider; and such interest, it is well settled, was that of a tenant in common with the plaintiff. (Jackson v. Brownell, 1 John. 267. De Mott v. Hagerman, 8 Cowen, 220. Caswell v. Districh, 15 Wend. 379. Putnam v. Wise, 1 Hill, 234. Tripp v. Riley, 15 Barb. 333. Dinehart v. Wilson, Id. 595.)

"When the defendant took possession of the hay in question, therefore, he did not convert the property, so as to authorize the plaintiff to maintain trover for it, even though the plaintiff had not forfeited his rights under the contract by feeding his own horses upon the hay raised from the farm; for nothing less than the destruction or sale of the joint property will constitute a conversion by a tenant in common or joint tenant. And as the hay was mostly devoted to the same purposes, by the defendant, which the plaintiff had covenanted to devote it to, by the agreement—that of feeding and maintaining the live stock placed upon the farm—he was not chargeable with a conversion in that appropriation of it; for changing the form of a chattel, by one joint owner, by converting it to its ultimately intended and profitable use, is not wrongful in judgment of law. (2 Hilliard on Torts, 425-8. 2 Greenl. on Ev. § 646. Fleming v. Greenville, 1 Taunt. 241.)

But the defendant kept one horse upon the hay, besides the horse and cow he was entitled, under the contract, to have maintained upon the farm. By the terms of the contract there was no disposition either expressly or impliedly made of the hay that might remain, after the stock placed upon the farm, together with the defendant’s horse and cow, had been fed upon it, so far as they required it. The excess, if any remained after the plaintiff had performed all the obligations in that respect resting upon him, would vest in and belong to the plaintiff. That there was such an excess may be fairly and reasonably inferred from the circumstance that the defendant was able to feed one horse upon it, in addition to the stock, horse and cow, the plaintiff was bound to maintain with it; and for that excess, whatever it might be proven to be worth, the plaintiff should have been allowed to recover, by the county court. To that extent, and to that only, the defendant became liable to the plaintiff, in the form of action adopted in this case; and to enable the plaintiff to maintain the action to that extent, the order should be reversed, and a new trial directed.

Erie General Term,

May 7, 1866.

Grover, Daniels, Marvin and Davis, Justices.]  