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2. CROPS – CROPPER'S COXTRACT - RELATIOy ready to thresh said grain that the first party CREATED.

or his authorized agent will be on hand to A cropper's contract, whereby one agrees to cultivate the land of another and is to re

care for his said share of grain. Dated at ceive as compensation therefor a share of the Blackwell, 0. T., October 15, 1902. John crops grown, does not create the relation of T. Shaw, Party of First Part. W. J. Spice, landlord and tenant. Except where it is other

Geo. W. Linn, Parties of Second Part. wise provided therein, such a contract grants possession of the land only as an incident to the

ness to signature party of second part: L. work that is to be performed, and confers no A. Shaw." The wheat was sown, and on general right of occupancy of and control over January 31, 1903, the appellant, Moore, filed the land cultivated.

a homestead entry on the land. The appel[Ed. Note.-For cases in point, see Cent. Dig. vol. 15, Crops, $$ 6, 7.]

lees, Linn and Spice, when harvest time

came, offered to cut and care for the wheat 3. APPEAL-REVIEW-HARMLESS ERROR. Error committed by a trial court in ex

under the contract, but Moore refused to cluding a written instrument from evidence will let them go on the place, but cut the wheat, not justify a reversal of the judgment, when through his employé, A. H. Prough; and secondary evidence is received in lieu thereof. and it is apparent that the party offering such

Linn and Spice commenced this action to instrument was not prejudiced by its exclusion : replevin the wheat, and judgment was renthe facts sought to be established thereby and dered in their favor for the delivery of the proven by parol evidence not being disputed.

wheat, or, if the property be not returned, [Ed. Note.--For cases in point, see Cent. Dig. vol. 3, Appeal and Error, $ 4101.]

then that they have judgment for $140 and

costs, taxed at $73.90. (Syllabus by the Court.)

The plaintiffs in this case should not have Error from District Court, Kiowa County ; recovered. When the entryman, Shaw, rebefore Justice Frank E. Gillette.

linquished back to the government, the govAction by George W. Linn and W. J. Spice ernment took the land free from any buragainst C. E. Moore and A. H. Prough. Judg dens of any kind. Shaw could not make a ment for plaintiffs, and defendants bring er contract which would in any way prevent ror. Reversed.

the government from conveying to any other Keys, Rummons & Cline, for plaintiffs in

person an absolute estate and full and comJ. R. Hunter, for defendants in er plete possession. Linn and Spice could not ror.

acquire rights to occupy the land greater

than the rights of Shaw. Under the law BURWELL, J. One John T. Shaw, while

Shaw could voluntarily relinquish the land, in possession of a tract of land on which he or the government might cancel the entry bad filed a homestead entry, which was still

for failure on his part to comply with the in force, entered into a contract with the

law. In either event the government would plaintiffs below, George W. Linn and W. J.

not only become reinvested with the absolute Spice, wherein they agreed to sow 36 acres

right of possession, but the legal title to the of this land to wheat and to harvest the

growing crops would revert to the governsame; they to receive two-thirds of the ment, because growing crops, in the absence wheat and Shaw was to receive one-third.

of contract, pass with the conveyance of The contract was in writing, but not filed or

real estate; and it has been held that where recorded in the office of the register of leeds. the government sells land to one, or permits It is as follows: "Territory of Oklahoina, one to file a homestead entry on a piece of Kiowa County—ss.: This agreement, made government land, the purchaser or entryand entered into this fifteenth day of Octo man not only acquires the absolute right of ber, 1902, by John T. Shaw, party of the possession, but also title to all improvements first part, and W. J. Spice and G. W. Linn, and growing crops thereon. Floyd v. Ricks, parties of the second part, witnesseth: That 14 Ark. 286, 58 Am. Dec. 374; Rasor v. parties of the second part are to prepare Qualls, 4 Blackf. (Ind.) 296, 30 Am. Dec. 638; and sow into wheat all the plowed ground, Boyer v. Williams, 5 Mo. 33.), 32 Am. Dec. located in a body on southeast quarter of 324; Reservation State Bank v. llolst, 17 southeast quarter of Sec. 31, Twp. 6 north, S. D. 210, 93 N. W. 931, 70 L. R. A. 799 ; range 17 west I. M., making approximately Hiatt v. Brooks, 17 Neb. 33, 22 N. W. 73. As :30 acres, inore or less. That said second between Shaw and the plaintiffs the conparties are to furnish the seed, cut the same tract could be enforced ; .but it could not be when ready, and put into shock, or, if headed, enforced as against the United States after to put into stack, all free of expense to first

the cancellation of Shaw's entry, or party. That second parties are to have against a subsequent entryman. When the (two-thirds) and first party 13 (one-third), appellees planted the wheat, they took chansaid wheat to be divided either in shock, ces on the entry of Shaw being canceled bestack, or when threshed, to be agreed upon fore the harvesting of the same. If this conby all parties hereafter ; but it is especially tract can be enforced, then one may make a understood and agreed by all parties hereto valid lease for a term of years, whereby he that said party of first part will bear his may plant the entire tract embraced in a part of expense in threshing (which is one homestead entry to fruit trees, paying therethird), and that when second parties are for one-third of the fruit, and hold the same

as against the United States or its grantees | appellees could recover damages from Shaw until the expiration of the lease, although we express no opinion; but they could not the entryman fails to comply with the law recover from Moore and Prough the value and the entry is canceled shortly after the thereof. As far as Prough was concerned, lease began to run. The difference between he was only the employé of Moore. He resuch a case and the one under consideration ceived no part of the grain, and therefore is of time only, and not in principle. When neither legally nor equitably should pay for Shaw's entry was canceled, the rights of the same. Contracts to pay for improveLinn and Spice in the growing crops were ments placed upon a tract of land by one forfeited to the government, the same as entryman with another, in consideration of those of Shaw.

the former relinquishing in order that the There is one other reason why the appel latter might file on the silme land, have been lees must fail to recover. The contract in upheld; but that is not this case. Moore question is not a lease of the land sowed to agreed to pay, and paid, the original entrywheat. The contract nowhere provides that man, Shaw, $1,300 for his improvements, and the possession of the land shall be in the the wheat in question was growing on the appellees until the harvesting of the crop. land at the time, and Moore had no knowlThe contract is simply an ordinary cropper's edge that the appellees claimed any interest contract, which the courts have almost uni therein until he had filed his homestead enversally held does not create the relation of try on the land. landlord and tenant. In volume 18 of the It is also contended that the trial court Am. & Eng. Enc. of Law (20 Ed.), at page committed error in refusing to admit in evi173, it is said: “The question whether an dence Moore's homestead filing receipt. We agreement constitutes a lease or an occupan are of the opinion that the instrument should cy on shares has chiefly arisen in the case of have been admitted; but the appellant sufagreements relating to farming lands, where fered no injury by reason of the exclusion by one party agrees to cultivate the land and thereof, because the witnesses were permitis to receive as compensation therefor a ted to testify fully regarding such entry, and share of the crops grown.

Under such an the testimony in relation thereto was not agreement the relation of the parties is not disputed. that of landlord and tenant-citing a long For the reasons stated, the judgment of list of cases from Alabama, Arizona, Arkan the lower court is hereby reversed, and the sas, Connecticut, Delaware, Georgia, Illinois, appellees' cause of action dismissed, at their Iowa, Massachusetts, Michigan, Minnesota, cost. All of the Justices concurring, except Mississippi, Missouri, New Jersey, New York, GILLETTE, J., who presided at the trial and other states. As to whether or not the below, not sitting, and IRWIN, J., absent.

(76 Kan. 345)

BERRY V. CRAIG. (Supreme Court of Kansas. July 5, 1907. Re

hearing Denied Oct. 14, 1907.) ACTION – JOINDER OF CAUSES OF ACTION BROKERS-SU'IT FOR COMMISSIONS.

In a suit for commission, a real estate broker may join a count for the reasonable value of his services with a count based upon an express contract to pay a stated commission. (Syllabus by the Court.)

Error from District Court, Morris County ; 0. L. Moore, Judge.

Action by W. 0. Craig against Carrie Berry. Judgment for plaintiff, and defendant brings error. Iffirmed.

Thad B. Landon, L. B. Kellogg, and Frank P. Sebree, for plaintiff in error. E. H. Ganıble, for defendant in error.

to join a count on the note with a count on the account. So here Boice might deny an express promise, Craig be unable to sustain the burden of proving it, and thus lose, although clearly entitled to recover the value of his services. This form of pleading has been recognized by this court (Edwards v. Hartshorn, 72 Kan, 19, 82 Pac. 520, 1 L. R. A. [N. S.] 1050. See, also, Campbell v. Fuller, 25 Kan. 723, 728), and conforms to the usual practice under the Codes. Cyc. 719; 5 Ene. Pl. & Pr. 321 et seq.; Bliss, Code Pl. (30 Ed.) § 120. The advertisement of the property by Craig was accompanied by evidence tending to show that Boice knew of it and asked what returns were obtained from it. Therefore it was relevant to prove authority.

For the same reason, evidence relating to efforts to make a sale to Woods of Strong City was properly admitted.

Objections to evidence relating to the value of the plaintiff's services need not be canvassed, since the jury found an express contract.

Without discussing separately the various assignments of error raising the question, it is sufficient to say that Boice employed Craig, and that Craig was clearly the procuring cause of the sale. The fact that Miller and Dunn, who were not known to Craig, were at one time prospective purchasers, does not affect Craig's right to a commission. The special findings are not inconsistent with, but support, the general verdict, and the defendant is not entitled to judgment upon them.

The motion for a new trial was properly overruled; and the judgment of the district court is affirmed. All the Justices concurring.

BURCH, J. Carrie Berry owned a stock ranch lying in Morris and Chase counties. H. S. Boice of Kansas City, Mo., was her general agent. As a result of negotiations with Boice, W. 0. Craig, a real estate agent of Kansas City, Mo., undertook to find a purchaser for the ranch. He employed T. Morris of Alma to assist, agreeing to divide the commission with him. Morris enlisted the aid of Fred Miller and Henderson Bros., also of Alma Miller brought the land to the attention of P. H. Dunn and Hercule Pessemier, of St. Marys. Miller and Dunn visited the land with the expectation of purchasing an interest in it with Pessemier, but they abandoned their purpose to buy, and Pessemier finally purchased direct from Boice. Craig sued Berry for his commission, and recovered. Numerous errors are assigned, but they may all be disposed of briefly.

The petition contained two counts. In the first it was alleged that the plaintiff was employed to find a purchaser, that he did so, and that his services were reasonably worth a stated sum. The second count alleged that the defendant's agent promised to pay the sum named as a commission for the services rendered. At the beginning of the trial, the defendant moved the court to require the plaintiff to elect between the two counts, but the motion was overruled, evidence was introduced in support of each, and the claim in each was submitted to the jury who found an express contract. The ruling was correct. The two counts were entirely consistent. Neither contradicted the other. The facts stated in the first might be true and the facts stated in the second also might be true. If an express contract existed, recovery could not be had upon an implied contract, but, to meet possible exigencies of the proof, the plaintiff had the right to go to the jury upon both sets of allegations. Take the case of a note given by a debtor's agent in settlement of an account. It would be manifestly unjust to oblige the creditor to stake his entire case upon his ability to prove authority to sign the note, and he ought to be allowed

91 P-58

(76 Kan. 247) DAVIDSON et al. v. HUGHES et al. (Supreme Court of Kansas. July 5, 1907. Re

hearing Denied Oct. 14, 1907.) 1. PLEADING – AMENDMENT AFTER DEMURRER SUSTAIXED-TIME FOR MOTION.

Where a demurrer to an answer is sustained, and the defendant stands upon his exception thereto, and judgment is rendered against him and he takes additional time to prepare a case for appeal to the Supreme Court, and when. after more than three days have elapsed and the term of court has expired, he files à motion to set aside the judgment and to be allowed to file an amended answer, such motion is out of time, and cannot be considered. 2. DAMAGES-LIQUIDATED DAMAGES.

When at the execution of an oil and gas lease only $1 is paid to the grantors therefor, and the grantees agree, as the principal considcration, to complete three wells on the premises within 12 months from the execution of the contract, or to pay $500"as a forfeit," such agreement of payment on default will be regarded as a provision for liquidated damages, and not as a penalty.

[Ed. Note.-For cases in point, see Cent, Dig. vol. 15,' Damages, $ 164.) (Syllabus by the Court.)

Error from District Court, Chautauqua County; G. P. Aikman, Judge.

Action by E. S. Hughes and others against demurrer was sustained October 7, 1905, and J. E. Davidson and others. Judgment for the defendants made no application for furplaintiffs, and defendants bring error. Af ther pleading, but stood upon their excepfirmed.

tions to the ruling, and the court rendere !

judgment in favor of the plaintiff's in the Rossington & Smith, Samuel Barnum, and

sum of $300 as prayed for. Time was given, Gunnell & Chinn, for plaintiffs in error.

presumably upon the application of defendBrooks & Spencer, for defendants in error.

ants, to make a case for appeal to the Su

preme Court. Thereafter, on November 17, SMITH, J. Hughes and wife, owners of 1907, the defendants, on notice, presented to certain lands, executed a so-called oil and gas the judge of the district court at chambers lease thereof to Davidson and others, which their motion to set aside the judgment of lease contained the following provision: the court and for leave to file an amendeil all"The lessees agree to commence drilling a swer. This application, filed 10 days after well on the land above described, one well judgment and after the expiration of the in (3) months, 2 additional within one year term of court, was not made in time. See from the above date. If said lessees fail to Code Civ. Proc. $ 308 (Gen. St. 1905, $ 3201). complete 3 wells within 12 months, as above If the defendants considered themselves enprovided, then and in that case said lessees titled to any relief; they should have filed a agree to pay $500.00 (as a forfeit) to said les petition under the provisions of section 310 sors at the expiration of that time." The (Gen. St. 1903, § 5206). plaintiffs in error failed to do anything un We have, then, only to consider whether der the lease for more than 12 months, and the petition stated a cause of action, and Hughes and wife commenced this action to whether the answer stated any defense there.. recover $500 under the provision. There to. The petition is based on the provision after an answer was filed which admitted of the lease above quoted without any spethe execution of the lease and substantially cial allegation of damages, and the answer all the allegations of the petition, and set up states no defense except the affirmative allethe following defense thereto: "That al gation that the plaintiffs suffered no actual though the contract of lease mentioned in damages by reason of the failure of the deand filed with the petition herein contains fendants to complete the wells provided for the provisions set out in clause 4 of the in the contract within the prescribed 12 petition, and although defendants did not months. Is an allegation of actual damages complete the three wells on the premises de essential to the sufficiency of the petition? scribed in said lease within 12 months from Or, which is practically the same question, and after its date, yet defendants say that does the answer of “no resulting damage" said provisions and the failure of defend constitute a defense to the agreement to ants to comply with its said terms do not pay, in default of performance, $500? Thic give plaintiff's a right to recover of defend language of the contract is that, upon des ants the sum of $300, or any other sum. fault, the $300 is to be paid as "a forfeit," fendants, further answering. say that during and the question to be solved is whether unthe latter part of the year 1904, and long be dler all the circumstances this "forfeit" was fore the expiration of the tiine for drilling intended as a penalty, as rental, or as liquisaid wells under the lease, the price of oil dated damages. The language of the congreatly declined, the market thereof derlin trait is of itself not conclusive. The coning more than half, and there became and sideration for the contract at its inception was no market for oil in the Kansas field; was only $1, and it is apparent that the real that by reason of the decline in the price of inducement which led the owners of the land oil, and the failure of the Prairie Oil & Gas to make the grant was the promise of the Company, it being the only purchaser there grantees to do the stipulated things within of in the Kansas field, to buy the same, the stipulated time. Performance thereof drilling and development for oil in the Kan. might result in great profit to the grantees, sas field became and was practically ceased, and failure to perform and the exclusion of and not only was plaintiff not damaged by all other prospectors from the premises, who the failure of defendants to drill said wells might desire to purchase the privileges, may, as providel in suid lease, but defendants al under the circumstances, be presumed to lege that their failure so to drill was and is have resulted in damage. The extent of beneficial to plaintiffs, for the reason that such damage could only be conjectural, and the oil is more valuable in the ground than would be difficult, if not impossible, of speto be evaporating at the surface, by reason citic pleading or specific proof. In view of of there being no market for the same and these evident considerations, we think the the inability to sell the same at any reason parties agreed upon the payment of $500 as able price. Wherefore, plaintiffs having sus liquidated damages in case of default by thi. tained no damages by reason of defendants' grantees, and it seems not an unreasonable, failure so to drill as aforesaid, the defend but a very reasonable, provision under the ants pray that they may be permitted to circumstances. See 13 ('yo. 97 et seq; Vongo hence without delay, and recover their mouth Park Ass'n v. Wallis Iron Works, costs herein expended.” To this answer a JJ X. J. Law, 132, 26 Atl. 110, 19 L. R. A.

Macbeth & May, Benedict & Phelps, and Doud & Fowler, for plaintiff in error.

F. A. Williams, for defendant in error.

450, 36 Am. St. Rep. 626; Woodland Oil Co. v. Crawford, 55 Ohio St. 161, 44 N. E. 1093, 34 L. R. A. 67; Morse v. Rathburn, 42 Mo. 594, 97 Am. Dec. 359; Smith v. Smith, 4 Wend. (N. Y.) 168; Streeper v. Williams, 48 Pa. 150; Sutton v. Howard, 33 Ga. 536; Cheddick's Adm'r v. Marsh, 21 N. J. Law, 403; Gibson y. Oliver, 158 Pa, 277, 27 Atl. 961; Jaquith v. Hudson, 5 Mich. 123.

We conclude that the petition stated a cause of action, and that the demurrer thereto was properly overruled, that the answer stated no defense, and that the demurrer thereto was properly sustained.

The judgment is affirmed. All the Justices concurring.

(77 Kan. 842)

DAVIDSON et al. v. HUGHES et al. (Supreme Court of Kansas. July 5, 1907.

hearing Denied Oct. 14. 1907.) Error from District Court, Chautauqua County; G. P. Aikman, Judge,

Action by 0. E. Hughes and others against J. E. Davidson and others. Judgment for plaintiffs, and defendants bring error. Affirmed.

Rossington & Smith, Samuel Barnum, and Gunnell & Chinn, for plaintiffs in error. Brooks & Spencer, for defendants in error.

PER CURIAM. This case was briefed and submitted with No. 15,111, between the same parties as plaintiffs and defendants in error. 91 Pac. 913. In this case a larger consideration was paid by the grantees at the time of executing the contract, yet we are constrained to hold that the same considerations prevail, and the judgment herein is affirmed on the authority of that case.

CAMPBELL, J. The board of education of school district No. 1 in Arapahoe county entered into a contract with W. E. Towers whereby he agreed to build a public school building for a named consideration according to certain plans and specifications, to pay all artisans, materialmen, and laborers doing work on or about the building, and that no liens should be filed thereon. At the same time Towers, as principal, and the International Trust Company, as surety, gave to the board a bond, the condition of which was that, if Towers performed all of his promises and agreements contained in the contract, the bond would be void; otherwise, it was to remain in force. Towers sublet the brickwork upon the building to Charles H. Smith, and Smith made a contract with the Keefe Janufacturing & Investment Company for furnishing the brick to him. Towers paid Smith all that was coming to him under the coutract. Smith did not pay to the Keefe Company for all the brick which it furnished; the balance due being about $1,000. The building was accepted by the board in December, 1901, and the board paid Towers the entire balance due him May 12, 1902. The bond expressly provided that it should be annulled on the acceptance of the building by the board. On the failure of Smith to pay to it the balance due, the Keefe Company, May 28, 1902, brought this action against the International Trust Company, as surety on the bond, to recover the same, and alleged in its complaint, in addition to the foregoing facts, that, relying upon this bond, the plaintiff furnished and delivered the brick to Smith. The answer of the surety company denied that plaintiff relied upon this bond in furnishing brick, and as a separate defense alleged that, prior to the assertion of any claim or demand by plaintiff against Towers, or the board, or the defendant surety company, the board accepted the school building in December, 1901, and then canceled and annulled the bond given to it by the defendant, and thereby released and discharged the defendant from all liability.

It will be observed that this action was instituted after the annulment and cancellation of the bond, and after the final payment by the board of the balance due Towers under his contract. There was no evidence by plaintiff that it furnished the brick in reliance upon the bond. Its allegation to that effect in the complaint was denied by the answer, and, so far as the record discloses, plaintiff made no claim whatever against the defendant under this bond until this action was begun. The argument of counsel is largely devoted to the meaning of the bond—the plaintiff maintaining that the contract therein was made directly and primarily for its benefit, and was

(40 Colo. 440) INTERNATIONAL TRUST CO. V. KEEFE

MFG. & INV. CO. (Supreme Court of Colorado. July 1, 1907.

Rehearing Denied Oct. 7, 1907.) BONDS-PERFORMANCE.

Where a bond to secure a contract to build a public schoolhouse, providing that the contractor would pay for all material and labor and that no liens should be filed, stipulated that it should be annulled on acceptance of the building, and the building was accepted before one furnishing material to a subcontractor knew of the bond's existence or made any claim thereunder, and consequently before he relied there. on, the bond became functus officio, and the one so furnishing the material could not thereafter enforce it.

Error to Arapahoe County Court; Ben B. Lindsey, Judge.

Action by the Keefe Manufacturing & Investment Company on a bond against the International Trust Company. Judgment for plaintiff, and defendant brings error. Reversed.

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