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we cannot accept the estimates given by the lessors testifying as to the extent of the losses occasioned by the lessee's want of care of the premises and its products, we do think the evidence justifies a greater charge against the lessee's account than that made by the trial court.

be mentioned. In the year 1919 the hay was harvested and stacked upon the land, while in the stacks it was measured by one of the lessors, assisted by a neighbor, according to an approved rule. The sacks were found to contain 240 tons, and approximately this quantity was reported by the foreman in 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, yet 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 ownership 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 measurements of the stacks in the field before they are weighed, the results of the former process must be binding on the court." The conclusions here drawn are unquestionably just, but we can find no support in the evidence for the facts from which the conclusions 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

The cause is remanded, with instructions to conform the decree to this requirement; in other respects it will stand affirmed. The lessors will recover their costs of appeal.

MAIN, C. J., and BRIDGES, MITCHELL, and PEMBERTON, JJ., concur.

NAYLOR v. MORROW.

1924.)

(No. 18216.) Nov. 18,

which would pass as merchantable. It is (Supreme Court of Washington.
common knowledge that exposed stacks of
hay deteriorate under such conditions, and
here there was evidence that the hay had
been poorly stacked, and a greater loss than
is usually to be expected was suffered. We
cannot, however, accept the principle that
this method of treating the hay is the good
husbandry the lease required. Seemingly,
good husbandry would require that the hay
be either protected from the elements or
baled and disposed of in a more propitious
season. As to the second crop mentioned,
there is no evidence that the hay was baled or
weighed at all. One hundred tons of it were
sold by the lessee to himself for uses on oth-
er of his farms, and 40 tons to a Mr. McEwan.
None of it is reported as baled or weighed,
and it would seem that the measurements
by the one party would furnish as accurate
a test of quantity as would measurements by
the others.

Appeal and error 790 (2)-Action to enjoin
tenant's removal of house purchased from
mortgagor dismissed on appeal as presenting
moot question.

Respondent having foreclosed mortgage and bid in property for more than amount due, with attorney's fees, interest, and costs, prior to reargument before Supreme Court en banc on appeal from decree requiring appellant to return house moved from premises by him before expiration of his lease from mortgagor, question as to respondent's knowledge of apmortgagor became moot, and action to enpellant's ownership of house by purchase from join removal will be dismissed.

En Banc.

Appeal from Superior Court, Yakima County; Nichoson, Judge.

Action by M. G. Naylor against C. D. Morrow. Decree for plaintiff, and defendant appeals. Action dismissed.

F. E. Gordon, of Toppenish, and Grady & Velikanje, of Yakima, for appellant.

Similar testimony of waste and improper care is given with reference to other products of the premises. Something of its nature with reference to the fruit crops we have hereinbefore stated, and we do not feel that we need pursue the inquiry further. While for respondent.

Holden, Shumate & Cheney, of Yakima,

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

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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 testified, a condition precedent to the grant to him of a lease of the land. Prior to the expiration of his lease Morrow began to remove the house from the land. He had moved it into the roadway in front of the prop-1. Tenancy in common 39-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 when the respondent, Naylor, as the mortgagee of the premises, began the present action to enjoin him from so doing, asking as a part of his relief that Morrow be compelled to return the house to its former situation. A

DE LA POLE v. LINDLEY et al. (No. 18565.)

(Supreme Court of Washington. Nov. 20, 1924.)

otherwise dispose of his interest in the comOne tenant in common may sell, lease, or mon property, without the consent of his cotenant, and without the latter's joining in the conveyance.

temporary injunction preventing the further 2. Tenancy in common 49-Lease of land by removal of the house was sought and granted.

Morrow interposed a general demurrer to the complaint, which the court overruled. He then answered, setting up his ownership of the house, and averred that he was moving it as of right. The affirmative allega

cotenant without consent of her cotenant, held not void as to former's interest in land.

A lease of all of the land, executed by cotenant D. without the consent of her cotenant, was not void as to D.'s interest in the land, in view of co tenant's power of disposition of her interest.

3. Tenancy in common 49-Lessee of one

cotenant was tenant in common with other cotenant, and his possession of any part of land was not wrongful,

A lessee of cotenant D. of farm land was a tenant in common with D.'s cotenant, A., and his possession of any part of the land was not wrongful.

4. Tenancy in common 21-Rights of tenant in common, with respect to use of entire property, stated.

Each tenant in common is entitled to the use, benefit, and possession of the entire property, the only limitation being that he must so exercise his right as not to interfere with the equal rights of his cotenant.

tions of the answer were put in issue by a reply. At the trial Morrow produced a written bill of sale showing a sale of the house by Maggie Spencer Naylor to him at a time antedating the mortgage of the respondent, and the evidence was mainly directed to the question whether the respondent, at the time of the execution of the mortgage, had knowledge of Morrow's ownership. On this issue the trial court found that he did not have such knowledge, and further found that the respondent was entitled to have the house returned to its former situation on the land and placed in as good condition as it was prior to its removal. It thereupon entered a decree requiring and commanding Morrow to return the house to its former position within ten days after the service of the decree upon him and place it in the condition in which he found it prior to its removal; of rents and profits of land, derived by her corestrained him from thereafter interfering with it; and further ordered that the respondent have judgment against him in the sum of $233.33, with his costs and disbursements of the suit. The appeal is from this decree.

Prior to the reargument of this case before this court en bane the appellant filed a supplemental transcript showing that the respondent had foreclosed his mortgage upon the property, and at the sheriff's sale up

5. Tenancy in common 28 (1)-Cotenant's interest in property measures her right to share of rents and profits derived by other cotenant from use of land.

Plaintiff cotenant's right to recover share

tenant from its use, was measured by her interest in the land, and she could not complain of a judgment which awarded her recovery on that basis.

6. Trover and conversion 46-Measure of recovery value at time and place of conversion, in absence of unlawful trespass.

Measure of recovery for conversion of wheat on land is the value of the wheat at the time and place of conversion, in the absence of an unlawful trespass.

(230 P.)

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

Where defendant, as lessee and cotenant, was rightfully in possession of plaintiff's grain up to the time he sold it, the conversion took place at time of sale.

Department 2.

devised to the plaintiff a life estate in the land, with remainder over to a third party. She named the younger Lindley as her executor, and he qualified as such.

After the death of Mrs. Duncan, the plaintiff conceived that the sale of her interest in

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

Action by Alma De la Pole against E. L. Lindley and another. Judgment for plaintiff, and all parties appeal, plaintiff deeming relief insufficient. Affirmed.

an action against the executor and the residuary legatee to recover such interest. She was successful in her suit, and a final decree in her favor was entered in 1922. See De la Pole v. Lindley, 118 Wash. 387, 204 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:

FULLERTON, J. The plaintiff, Alma De la Pole, brought this action against the defendants Lindley, who are father and son, to recover as for the conversion of certain wheat. The plaintiff recovered in the sum of $1,277.79, and from a judgment entered in the plaintiff's favor for that sum, with interest, both parties appeal; the plaintiff contending that she was entitled to a much larger sum, and the defendants contending that there should have been no recovery at all.

The land upon which the grain was grown is situated in Columbia county, and was for merly the community property of John W. Duncan and Clara A. E. Duncan, his wife. John W. Duncan died intestate in February, 1898. The plaintiff was his adopted daughter, and was his heir at law to one-half of the community estate of which he died seized. Shortly after the death of Duncan, letters of administration of his estate were issued to Mrs. Duncan, and, in 1900, she purported to acquire, through the probate proceedings, the daughter's interest in the property. From that time forward until her death, which occurred in 1919, Mrs. Duncan treated the property as her own, sometimes farming it on her own account, and at other times leasing it to tenants, and at all times exercising acts of ownership over it, although the plaintiff continuously resided with her as a member of her household.

"That some time prior to the year 1920, the defendant E. L. Lindley verbally transferred to his codefendant, Troy Lindley, some interest in said lease or in the crops to be grown thereunder.

"That in the year 1920 the said defendants produced on said lands 8,696.25 bushels of wheat and 10 acres of hay, which transposed into wheat, amounts to 435 bushels, or a total of 9.131.25 bushels of wheat, at a total cost to said defendants of $4,422.73.

"That in the year 1921 the defendants produced on said lands, 5,098 bushels of wheat, at a total cost to said defendants of $4,096.74.

"That the defendants sold the wheat produc ed in 1920 at $1.23 per bushel, and sold the crops reduced in 1921 at $1.10 per bushel, at the time they were sold. which was the reasonable value of said crops

"That said E. L. Lindley was required to account to the executor of the estate of Clara A. E. Duncan for one-sixth of the grain produced on said lands, and for the grain produced on said lands in the year 1920, the executor accounted for as having been received by him as rental under said lease, the sum of $3,579.93, amount he was required under the terms of which, however, was $1,789.96 in excess of the said lease to receive as rental for said lands in his said capacity as executor.

"That of the crops produced in 1921 the defendant Troy Lindley, as executor of the last will and testament of Clara A. E. Duncan, deceased, turned over to the plaintiff in this action, 849.4 bushels of wheat, and of the hay produced in 1920, said executor delivered to the plaintiff one-third, the equivalent of 145 bushels of wheat.

"That the plaintiff in this action is entitled to receive from the defendants the proceeds of the one-half of all of the crops produced on said lands, less the amount of wheat turned over in kind to the plaintiff, and less one-half of the total cost of the production of said crops, and less also the sum of $1,789.96, so overpaid by E. L. Lindley to the executor of the estate of the last will and testament of Clara A.

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, .1924, "for the annual crop rental of onethird of all crops of hay and grain grown on the premises," during the term of the lease. Mrs. Duncan reserved, from the operation of the lease, among other parts of the property, the dwelling thereon in which she and the plaintiff were then residing. The lessee took possession of the land leased to him. Duncan, deceased, as aforesaid; so that, immediately after the execution of the lease, and raised crops thereon during the years 1920 and 1921. Mrs. Duncan died on Novem

for the crop of 1920, the defendants are indebted to the plaintiff in the sum of $5,459.47, as the proceeds of 4,420.63 bushels of wheat at $1.231⁄2 per bushel, less $2,211.37, one-half

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

complaint.

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 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, her principal contentions are that the lease under which the defendant holds is void, that the defendant was for that reason a trespasser on the land, and that she is, in consequence, entitled to recover as for the value of the entire crop of grain and hay grown by the defendant on the land, and for which he has not accounted to her. But with these contentions we are unable to agree. The lease was not void as to Mrs. Duncan's interest in the land. At the time of its execution she was a tenant in common with the plaintiff in the property, and one tenant in common may lawfully sell, lease, or otherwise dispose of his interest in the common property without the consent of his cotenant, and without the cotenant joining in the instrument of conveyance by which the interest is conveyed.

[6, 7] The claim is made that the trial court erred in not allowing a recovery for the highest market value of the grain between the time the defendant appropriated it and the time of the trial. The court allowed a recovery, it will be seen from the findings quoted, for the value the defendant received at its sale. The correct measure of recovery, where there is no willful trespass, is the value of the property at the time and place of conversion. Chappell V. Puget Sound Reduction Co., 27 Wash. 63, 67 P. 391, 91 Am. St. Rep. 820; Gunstone v. Chicago, M. & P. S. R. Co., 79 Wash. 629, 140 P. 907, 52 L. R. A. (N. S.) 392. Farmers' & Merchants' Bank v. Small (Wash.) 229 P. 531.

Since in this instance the defendant was rightfully in possession of the grain up to the time he sold it, the conversion took place at that time. It follows that, since the sale was for the full market value, the court did not err in holding that the price received measured the amount of recovery.

[3-5] In this instance, therefore, the lessee, in so far as possession of and the right to farm the land was concerned, was a tenant in common with the plaintiff. His possesThe 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 ant. 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 the property were finally established, which was after the crops, the value of which she seeks to recover, were grown and harvested. It follows that her utmost right is to recover a share of the rents and profits of land derived by her cotenant from its use, measured by her interests in the property. The judg. ment of the trial court awards her this, and

terial parts, is somewhat difficult to follow. Our study of it, however, convinces us that there was no error in the court's conclusion that wheat to the value found by it had not been accounted for.

The judgment is affirmed.

MAIN, C. J., and BRIDGES, MITCHELL, and PEMBERTON, JJ., concur.

(230 P.)

YOUNG v. AMERICAN CAN CO.

(No. 18804.)

(Supreme Court of Washington. Nov. 20, 1924.)

The canning company some time before the cause of action arose had entered into a contract with a third party to finance its operations. This contract is in evidence, and clearly provides that the financing party shall provide all funds necessary for the purchase of fruit and cans to be used by the

1. Appeal and error 1012(1) — Supreme Court bound by fact finding not against pre-canning company in its operations, and these ponderance of evidence.

Supreme Court is bound by fact finding, against which evidence does not preponderate. 2. Sales 201(3)-Credit memorandums for cans returned held not to affect question of title to such cans.

Party bound by contract to furnish only such cans to canning company as were needed for season's pack never parted with title to undelivered cans stored in warehouse in its name, to be transported to canner as needed, and hence was entitled to recover money paid therefor by it on their return to manufacturer, and manufacturer's credit memorandums on account of such return vested no right in canning com

pany.

3. Assignments 90-Assignment of chose in action gives assignee no greater rights than assignor had.

Assignment of chose in action, as distinguished from negotiable instrument, gives assignee no greater rights than assignor had.

4. Appeal and error 173(9)—Estoppel cannot be urged on appeal, unless pleaded or raised in lower court.

Estoppel to deny liability cannot be asserted on appeal, unless pleaded or raised in court below.

5. Estoppel 78 (6)-Defendant held not estopped to deny liability on credit memorandus to assignee thereof.

Manufacturer issuing credit memorandums, subsequently assigned by recipient to secure pre-existing debt to assignee, held not estopped to deny liability thereon to latter, who parted with nothing on faith thereof.

Department 1.

provisions were met so far as cans were concerned by the financing party ordering cans which it expected would be needed, from the respondent (except the first carload the order for which was placed by the canning company), having them shipped with bill of lading attached to sight draft, paying the drafts with its own funds, taking possession and storing the cans in a warehouse at Chehalis in its own name on an order warehouse receipt. Thereafter the cans thus stored were, as needed, transported to the cannery at Mossyrock. The evidence tends to show that the greater part of the last carload of cans (there were but three carloads in all) never passed into the possession of the canning company, but were returned to respondents with the rejects from the two prior shipments, and for the goods thus returned, with some boxes and crates included, respondents issued its credit memorandums here involved.

[1-3] The facts as to the major part of the cans returned, never having been delivered to the canning company, were found by the trial court against the appellant, and, as we are convinced that the evidence does not preponderate against that finding, we are bound by it. It therefore follows that the canning company never had title to such undelivered cans. The financing party, being bound to furnish only such cans as were needed for the season's pack, never parted with its title to the cans which it retained. Upon their re turn it was entitled to receive back the money which it had paid therefor. The credit memorandums are memorandums only. They

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

Action by J. W. Young, administrator of the estate of William Young, deceased, against the American Can Company. From judgment for plaintiff in unsatisfactory amount, he appeals. Affirmed.

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

ent.

it did not already have, and their assignment to appellant's decedent carried no right not then vested in the canning company. The assignment of a chose in action as distinguished from a negotiable instrument cannot give the assignee greater rights than the assignor had.

"But, while the assignee takes all the rights of his assignor under the agreement transferred to him, the assignor can assign no greater in

terest in the contract than he himself has, and the assignee can take no greater interest therein than that possessed by the assignor at the time when the debtor or person liable receives notice of the assignment." 2 Elliott on Contracts, § 1457.

TOLMAN, J. The plaintiff by this action seeks recovery on two credit memorandums, aggregating the sum of $1,398.80, made by the defendant to the Cowlitz Valley Canning Company, a corporation, and by it assigned 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

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