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(230 P.) be mentioned. In the year 1919 the hay was we cannot accept the estimates given by the harvested and stacked upon the land, while lessors testifying as to the extent of the lossin the stacks it was measured by one of the es occasioned by the lessee's want of care of lessors, assisted by a neighbor, according the premises and its products, we do think to an approved rule. The sacks were found the evidence justifies a greater charge to contain 240 tons, and approximately this against the lessee's account than that made quantity. was reported by the foreman in by the trial court. charge of the premises, who knew nothing The lessee has had the use of the premises of the measurement, to the officers of the for five successive crops. He neither pays United States Reclamation Service, yet the the taxes nor the water rents. For the last lessee accounted for only 131.56 tons. In two years he has paid no rent. His books 1920 the lessor again measured the hay while show that there is now due on account of it was in the stack, finding 250 tons. This the lease $10,529.65, whereas the original obquantity was likewise reported to the recla- ligation was only $11,200, plus the rent of mation service as the quantity grown there the premises for three years. It is plain that, on by the lessor's son who had charge of unless he is held to a somewhat strict acthe place for the lessor, yeć the lessee accountability, his lease will be perpetual; that, counted for only 140 tons. It is true the trial | he will enjoy all the benefits of ownershiş judge gave no heed to these measurements without its principal burdens. But while, as and these reports, saying,

but we

we say, we cannot accept the lessors' estiknow there are many methods of measuring mates of their losses caused by the lessee's hay, and the only true criterion of obtaining | inattention, we think they have an evidenexact weights is by having the hay baled and tiary value greater than the trial court alweighed, and between the two methods there lowed to them. In our opinion it is well is no question but that the court should find within the evidence to reduce the amount of that, where one party has had the hay baled the lessee's claims to $5,000. and weighed and another party has made The cause is remanded, with instructions measurements of the stacks in the field be to conform the decree to this requirement; in fore they are weighed, the results of the other respects it will stand affirmed. The former process must be binding on the court." lessors will recover their costs of appeal. The conclusions here drawn are unquestionably just, but we can find no support in the MAIN, C. J., and BRIDGES, MITCHELL, evidence for the facts from which the conclu- and PEMBERTON, JJ., concur. sions assume. The hay crop for the year 1918 was partly baled and weighed, but the baling was done in midwinter, after the stacks had stood exposed to the weather for a number of months and only that part was baled

NAYLOR V. MORROW.. (No. 18216.) which would pass as merchantable. It is

(Supreme Court of Washington, Nov. 18, common knowledge that exposed stacks of

1924.) hay deteriorate under such conditions, and here there was evidence that the hay had Appeal and error Om790(2)-Action to enjoin

tenant's removal of house purchased from been poorly stacked, and a greater loss than

mortgagor dismissed on appeal as presenting is usually to be expected was suffered. We

moot question. cannot, however, accept the principle that

Respondent having foreclosed mortgage and this method of treating the hay is the good bid in property for more than amount due, with husbandry the lease required. Seemingly, attorney's fees, interest, and costs, prior to good husbandry would require that the hay reargument before Supreme Court en banc be either protected from the elements or on appeal from decree requiring appellant to baled and disposed of in a more propitious return house moved from premises by him beseason.

As to the second crop mentioned, fore expiration of his lease from mortgagor, there is no evidence that the hay was baled or question as to respondent's knowledge of ap. weighed at all. One hundred tons of it were pellant's ownership of house by purchase from

mortgagor became moot, and action to sold by the lessee to himself for uses on oth-join removal will be dismissed. er of his farms, and 40 tons to a Mr. McEwan. None of it is reported as baled or weighed, En Banc. and it would seem that the measurements

Appeal from Superior Court, Yakima by the one party would furnish as accurate County; Nichoson, Judge. a test of quantity as would measurements by the others.

Action by M. G. Naylor against C. D. MorSimilar testimony of waste and improper

row.

Decree for plaintiff, and defendant apcare is given with reference to other products

peals. Action dismissed. of the premises. Something of its nature F, E. Gordon, of Toppenish, and Grady & with reference to the fruit crops we have Velikanje, of Yakima, for appellant. hereinbefore stated, and we do not feel that Holden, Shumate & Cheney, of Yakima, we need pursue the inquiry further. While for respondent.

w For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

en

when the respondent, Naylor, as the mortga. /

PER CURIAM. On December 29, 1920, , on execution had bid in the property for an one Maggie Spencer Naylor was the owner amount in excess of what was due on the of a 40-acre tract of land situated in Yakima mortgage, together with attorney's fees, incounty. On that day she mortgaged the terest, costs, and increased costs, and it property to the respondent, M. G. Naylor, to therefore follows that the controversy besecure a loan of $4,000 then made by M. G. tween the parties to this action is terminatNaylor to her. At the time the loan was ed, and the questions presented on this apmade there was a house upon the land oc- peal are moot. For that reason the respondcupied by the appellant, C. D. Morrow, who ent's action will be dismissed; neither parheld the real property under a lease from ty to recover costs of the other in this court. Maggie Spencer Naylor. This house, as between Maggie Spencer Naylor and C. D. Morrow, was the property of Morrow; he having purchased it from her some time in 1918, she making the purchase, as he testi

DE LA POLE v. LINDLEY et al. fied, a condition precedent to the grant to

(No. 18565.) him of a lease of the land. Prior to the ex- (Supreme Court of Washington. . Nov. 20, piration of his lease Morrow began to re

1924.) move the house from the land. He had moved it into the roadway in front of the prop-1. Tenancy in common m39—Powers possess. erty, and was proceeding with it to a tract

ed by cotenant, of disposing of his interest,

stated. of land of his own a short distance away

One tenant in common may sell, lease, or gee of the premises, began the present action otherwise dispose of his interest in the com

mon property, without the consent of his coto enjoin him from so doing, asking as a part tenant, and without the latter's joining in the of his relief that Morrow be compelled to conveyance. return the house to its former situation. A 2. Tenancy in common em49—Lease of land by temporary injunction preventing the further

cotenant without consent of her cotenant, removal of the house was sought and grant held not void as to former's interest in land. ed.

A lease of all of the land, executed by coMorrow interposed a general demurrer to tenant D. without the consent of her cotenant, the complaint, which the court overruled. was not void as to D.'s interest in the land, in He then answered, setting up his ownership view of cotenant's power of disposition of her of the house, and averred that he was mov- interest. ing it as of right. The affirmative allega-3. Tenancy in common @49—Lessee of one tions of the answer were put in issue by a cotenant was tenant in common with other reply. At the trial Morrow produced a writ cotenant, and his possession of any part of ten bill of sale showing a sale of the house land was not wrongful, by Maggie Spencer Naylor to him at a time A lessee of cotenant D. of farm land was a antedating the mortgage of the respondent, tenant in common with D.'s cotenant, A., and and the evidence was mainly directed to the his possession of any part of the land was question whether the respondent, at the time not wrongful. of the execution of the mortgage, had knowl. 4. Tenancy in common am 21-Rights of ten. edge of Morrow's ownership. On this issue ant in common, with respect to use of entire the trial court found that he did not have property, stated. such knowledge, and further found that the Each tenant in common is entitled to the respondent was entitled to have the house use, benefit, and possession of the entire propreturned to its former situation on the land erty, the only limitation being that he must so and placed in as good condition as it was

exercise his right as not to interfere with the prior to its removal. It thereupon entered equal rights of his cotenant. a decree requiring and commanding Morrow 5. Tenancy in common in 28 (1)-Cotenant's to return the house to its former position interest in property measures her right to within ten days after the service of the de

share of rents and profits derived by other

co tenant from use of land. cree upon him and place it in the condition in which he found it prior to its removal;

Plaintiff cotenant's right to recover share restrained him from thereafter interfering of rents and profits of land, derived by her co

tenant from its use, was measured by her inwith it; and further ordered that the re

terest in the land, and she could not complain of spondent have judgment against him in the

a judgment which awarded her recovery sum of $233.33, with his costs and disburse- that basis. ments of the suit. The appeal is from this

6. Trover and conversion 46-Measure of decree.

recovery value at time and place of converPrior to the reargument of this case be

sion, in absence of unlawful trespass. fore this court en banc the appellant filed

Measure of recovery for conversion of a supplemental transcript showing that the wheat on land is the value of the wheat at the respondent had foreclosed his mortgage up time and place of conversion, in the absence of on the property, and at the sheriff's sale up-1 an unlawful trespass.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

on

(230 P.) 7. Trover and conversion 10-Grain con-, ber 27, 1919. She left a will in which she verted at time of sale.

"devised to the plaintiff a life estate in the Where defendant, as lessee and cotenant, land, with remainder over to a third party. was rightfully in possession of plaintiff's grain She named the younger Lindley as her execuup to the time he sold it, the conversion took tor, and he qualified as such. place at time of sale.

After the death of Mrs. Duncan, the plain

tiff conceived that the sale of her interest in Department 2.

Appeal from Superior Court, Columbia the land was voidable as to her, and began County; Mills, Judge.

an action against the executor and the resid

uary legatee to recover such interest. She Action by Alma De la Pole against E. L. was successful in her suit, and a final deLindley and another. Judgment for plain- cree in her favor was entered in 1922. See tiff, and all parties appeal, plaintiff deeming De la Pole v. Lindley, 118 Wash. 387, 204 relief insufficient. Affirmed,

P. 12. She then began the present action, S. A. Keenan, of Seattle, and R. M. Sturde- with the result hereinbefore stated. vant, of Dayton, for plaintiff.

As a basis on which to measure the amount Will H. Fouts and Roy R. Cahill, both of of the recovery, the trial court found these Dayton, for defendants.

further facts, namely:

"That some time prior to the year 1920, FULLERTON, J. The plaintiff, Alma De the defendant E. L. Lindley verbally transla Pole, brought this action against the ferred to his codefendant, Troy Lindley, some defendants Lindley, who are father and son, interest in said lease or in the crops to be to recover as for the conversion of certain grown thereunder. wheat. The plaintiff recovered in the sum

"That in the year 1920 the said defendants of $1,277.79, and from a judgment entered in produced on said lands 8,696.25 bushels of the plaintiff's favor for that sum, with in- into wheat, amounts to 435 bushels, or a total

wheat and 10 acres of hay, which transposed terest, both parties appeal; the plaintiff con

of 9,131.25 bushels of wheat, at a total cost tending that she was entitled to a much

to said defendants of $4,422.73. larger sum, and the defendants contending "That in the year 1921 the defendants prothat there should have been no recovery at duced on said lands, 5,098 bushels of wheat, at all.

a total cost to said defendants of $4,096.74. The land upon which the grain was grown

"That the defendants sold the wheat producis situated in Columbja county, and was for- ed in 1920 at $1.2342 per bushel, and sold the merly the community property of John W. crops reduced in 1921 at $1.10 per bushel, Duncan and Clara A. E. Duncan, his wife. at the time they were sold.

which was the reasonable value of said crops John W. Duncan died intestate in February,

"That said E. L. Lindley was required to 1898. The plaintiff was his adopted daugh- account to the executor of the estate of Clara ter, and was his heir at law to one-half of A. E. Duncan for one-sixth of the grain prothe community estate of which he died seized. duced on said lands, and for the grain produced Shortly after the death of Duncan, letters on said lands in the year 1920, the executor acof administration of his estate were issued counted for as having been received by him to Mrs. Duncan, and, in 1900, she purported as rental under said lease, the sum of $3,579.93, to acquire, through the probate proceedings, amount he was required under the terms of

which, however, was $1,789.96 in excess of the the daughter's interest in the property. said lease to receive as rental for said lands From that time forward until her death, in his said capacity as executor. which occurred in 1919, Mrs. Duncan treated "That of the crops produced in 1921 the dethe property as her own, sometimes farming fendant Troy Lindley, as executor of the last it on her own account, and at other times will and testament of Clara A. E. Duncan, deleasing it to tenants, and at all times exer- ceased, turned over to the plaintiff in this accising acts of ownership over it, although the tion, 849.4 bushels of wheat, and of the hay plaintiff continuously resided with her as a produced in 1920, said executor delivered to

the plaintiff one-third, the equivalent of 145 member of her household.

bushels of wheat. On December 21, 1918, Clara A. E. Duncan leased the land to the elder Lindley for a term ending on the 1st day of November, to receive from the defendants the proceeds of

*That the plaintiff in this action is entitled . 1924, "for the annual crop rental of one the one-half of all of the crops produced on third of all crops of hay and grain grown on said lands, less the amount of wheat turned the premises," during the term of the lease. over in kind to the plaintiff, and less one-half Mrs. Duncan reserved, from the operation of of the total cost of the production of said crops, the lease, among other parts of the prop- and less also the sum of $1,789.96, so overpaid erty, the dwelling thereon in which she and by E. L. Lindley to the executor of the es

tate of the last will and testament of Clara A, the plaintiff were then residing. The lessee took possession of the land leased to him for the crop of 1920, the defendants are in

E. Duncan, deceased, as aforesaid; soo that, immediately after the execution of the lease, I debted to the plaintiff in the sum of $5,459.47, and raised crops thereon during the years as the proceeds of 4,420.63 bushels of wheat 1920 and 1921. Mrs. Duncan died on Novem- / at $1.2342 per bushel, less $2,211,37, one-half

For other cases see same topic apd KEY-NUMBER in all Key-Numbered Digests and Indexes 230 P.--10

of the cost of production thereof, and less, we cannot hold that she has any cause for the sum of $1,789.96 overpaid to the executor complaint. of the last will and testament of Clara A. E.

In support of the contention that the lease Duncan, deceased, as aforesaid; and defendants is void, the appellant cites and relies upon are indebted to the plaintiff for 2,549 bushels the case of Snyder v. Harding, 34 Wash. 286, of wheat produced in 1921, less 849 bushels of the crop of 1921 turned over to the plain- 75 P. 812, but the case is not in point. In tiff by the said executor, or 1,700 bushels net that case the lease was held invalid as a. of wheat sold by said defendants at $1.10 per term lease because the leased interest was bushel, or $1,870, and said defendants are en community property and the wife did not titled to a credit of $2,048.37, as one-half of join in the lease. It was not so held because the cost of production of the crop of 1921, leav- one tenant in common could not make a valing a balance due to the plaintiff from the de- id lease of his interest in common property fendants of $1,279.77."

without the cotenant joining therein. [1, 2] Noticing the appeal of the plaintiff, [6, 7] The claim is made that the trial her principal contentions are that the lease court erred in not allowing a recovery for under which the defendant holds is void, the highest market value of the grain bethat the defendant was for that reason a

tween the time the defendant appropriated it trespasser on the land, and that she is, in and the time of the trial. The court alconsequence, entitled to recover as for the lowed a recovery, it will be seen from the value of the entire crop of grain and hay findings quoted, for the value the defendant grown by the defendant on the land, and for received at its sale. The correct measure of which he has not accounted to her. But with recovery, where there is no willful trespass, these contentions we are unable to agree. is the value of the property at the time and The lease was not void as to Mrs. Duncan's place of conversion. Chappell V. Puget interest in the land. At the time of its exe- Sound Reduction Co., 27 Wash. 63, 67 P. 391, cution she was a tenant in common with the 91 Am. St. Rep. 820; Gunstone v. Chicago, plaintiff in the property, and one tenant in M. & P. S. R. Co., 79 Wash. 629, 140 P. 907, common may lawfully sell, lease, or other- 52 L R. A. (N. S.) 392. Farmers' & Merchwise dispose of his interest in the common ants’ Bank v. Small (Wash.) 229 P. 531. property without the consent of his cotenant,

Since in this instance the defendant was and without the cotenant joining in the in- rightfully in possession of the grain up to strument of conveyance by which the inter- the time he sold it, the conversion took place est is conveyed.

at that time. It follows that, since the sale [3-5] In this instance, therefore, the lessee, was for the full market value, the court did in so far as possession of and the right to not err in holding that the price received farm the land was concerned, was a tenant measured the amount of recovery. in common with the plaintiff. His posses

The appeal of the defendants we do not sion of any part of the property was not, think requires extended consideration. The therefore, wrongful. The rule is that each contention is that they have fully accounted tenant in common is entitled to the use, for all the rents and profits received by them benefit, and possession of the entire prop- either to the plaintiff or to the executor of erty, the only limitation on his right being Mrs. Duncan's estate. The evidence on the that he must so exercise his right as not to question, owing to the manner in which it 'interfere with the equal rights of his coten- was presented to the trial court, consisting

In the present instance, we do not as it does of stipulations, records in former find that the plaintiff attempted to interfere causes between the parties, and probate recwith the lessee's possession until the termi-ords without specific references to the manation of the action by which her interests in terial parts, is somewhat difficult to follow. the property were finally established, which Our study of it, however, convinces us that was after the crops, the value of which she there was no error in the court's conclusion seeks to recover, were grown and harvested. that wheat to the value found by it had not It follows that her utmost right is to recover been accounted for. a share of the rents and profits of land de

The judgment is affirmed. rived by her cotenant from its use, measured by her interests in the property. The judg. MAIN, C. J., and BRIDGES, MITCHELL, ment of the trial court awards her this, and and PEMBERTON, JJ., concur.

ant.

(230 P.)

The canning company some time before the YOUNG V, AMERICAN CAN CO, cause of action arose had entered into a con(No. 18804.)

tract with a third party to finance its opera

tions. This contract is in evidence, and (Supreme Court of Washington. Nov. 20, 1924.)

clearly provides that the financing party

shall provide all funds necessary for the pur1. Appeal and error Om 1012(1) - Supreme chase of fruit and cans to be used by the Court bound by fact finding not against pre- canning company in its operations, and these ponderance of evidence.

provisions were met so far as cans were conSupreme Court is bound by fact finding, cerned by the financing party ordering cans against which evidence does not preponderate. which it expected would be needed, from the 2. Sales em 201(3)-Credit memorandums for respondent (except the first carload the or

cans returned held not to affect question of der for which was placed by the canning comtitle to such cans,

pany), having them shipped with bill of ladParty bound by contract to furnish only ing attached to sight draft, paying the drafts such cans to canning company as were needed with its own funds, taking possession and for season's pack never parted with title to undelivered cans stored in warehouse in its name. storing the cans in a warehouse at Chehalis to be transported to canner as needed, and in its own name on an order warehouse rehence was entitled to recover money paid there- ceipt. Thereafter the cans thus stored were, for by it on their return to manufacturer, and as needed, transported to the cannery at Mosmanufacturer's credit memorandums on account syrock. The evidence tends to show that the of such return vested no right in capping com- greater part of the last carload of cans (there pany.

were but three carloads in all) never passed 3. Assignments Om90—Assignment of chose in into the possession of the canning company,

action gives assignee no greater rights than but were returned to respondents with the assignor had.

rejects from the two prior shipments, and Assignment of chose in action, as distin- for the goods thus returned, with some boxes guished from negotiable instrument, gives as- and crates included, respondents issued its signee no greater rights than assignor had.

credit memorandums here involved. 4. Appeal and error om 173(9)-Estoppel can [1-3] The facts as to the major part of the

not be urged on appeal, unless pleaded or cans returned, never having been delivered raised in lower court.

to the canning company, were found by the Estoppel to deny liability cannot be assert- trial court against the appellant, and, as we ed on appeal, unless pleaded or raised in court

are convinced that the evidence does not pre below.

ponderate against that finding, we are bound 5. Estoppel Om78(6)-Defendant held not es- by it. It therefore follows that the canning

topped to deny liability on credit memoran- company never had title to such undelivered dus to ass nee thereof.

The financing party, being bound to Manufacturer issuing credit memorandums, furnish only such cans as were needed for subsequently assigned by recipient to secure pre-existing debt to assignee, held not estopped the season's pack, never parted with its title to deny liability thereon to latter, who parted to the cans which it retained. Upon their re with nothing on faith thereof.

turn it was entitled to receive back the mon

ey which it had paid therefor. The credit Department 1.

memorandums are memorandums only. They Appeal from Superior Court, Lewis County; vested no right in the canning company which Hewen, Judge.

it did not already have, and their assignment Action by J. W. Young, administrator of to appellant's decedent carried no right not the estate of William Young, deceased, then vested in the canning company. The asagainst the American Can Company. From signment of a chose in action as distinguishjudgment for plaintiff in unsatisfactory ed from a negotiable instrument cannot give amount, he appeals. Affirmed.

the assignee greater rights than the assignor

had. Gus L. Thacker, of Chehalis, for appellant. Forney & Ponder, of Chehalis, for respond

“But, while the assignee takes all the rights ent.

of his assignor under the agreement transferred

to him, the assignor can assign no greater inTOLMAN, J. The plaintiff by this action terest in the contract than he himself has, and

the assignee can take no greater interest thereseeks recovery on two credit memorandums, in than that possessed by the assignor at the acgregating the sum of $1,398.80, made by the time when the debtor or person liable receives defendant to the Cowlitz Valley Canning notice of the assignment.” 2 Elliott on ConCompany, a corporation, and by it assigned tracts, g 1457. to William Young in his lifetime. The cause was tried to the court resulting in a judg. [4, 5] But appellant now asserts that the ment in favor of the plaintiff for $82.08 only, respondent is estopped to deny its liability and from this judgment the plaintiff has ap- | upon the credit memorandums. Unfortunatepealed.

ly for this contention, appellant did not plead For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and indexes

cans,

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