CHARLES R. CROSBY, Respondent,
DELOS A. WOLEBEN, Appellant.
APPEAL by the defendant, Delos A. Woleben, from a judgment of the County Court of Chautauqua county in favor of the plaintiff, entered in the office of the clerk of said county on the 22d day of July, 1911, upon the decision of the court rendered after a trial before the court without a jury.
William S. Stearns, for the appellant.
Nelson J. Palmer, for the respondent.
The action is in conversion. On the 31st day of August, 1906, the defendant entered into a written agreement with John E. Stebbins for the letting on shares of a farm of 120 acres, of which the defendant was the owner, and for the period of five years from the first day of March following. Stebbins went into possession in pursuance of the agreement and continued to carry on the farm until about the 1st of October, 1909. A considerable portion of the farm was devoted to the cultivation of grapes. By the terms of the agreement Stebbins was to 'pick and pack the grapes,' to furnish one-half of the packages for their marketing and to deliver them to a shipping point in the town of Portland, in which the farm was situated, and each was to have one-half of the amount received for the same.
On the 21st of August, 1909, Stebbins owed the plaintiff for a store account and also by reason of a promissory note given by Stebbins to him and which had been indorsed and negotiated at a bank by the plaintiff, and the aggregate indebtedness was about $210. On that day Stebbins executed and delivered to the plaintiff a bill of sale of an undivided one-half of said grapes, which were then on the vines but not sufficiently matured for picking, and said instrument was forthwith filed in the office of the clerk of the said town, and the defendant very soon thereafter was personally informed of the giving of said bill of sale and of the consideration inducing it.
On the 27th day of September, 1909, the defendant and Stebbins entered into a written agreement terminating the original contract and providing that Stebbins should remove from the farm on or before October fourth, and that the defendant 'shall retain all crops harvested and unharvested.' The plaintiff demanded one-half of the grapes, offering to pay one-half the expense of picking and marketing the same in accordance with the terms of the contract of letting. The defendant repudiated the plaintiff's title and gathered and sold the grapes, and thereafter this action was commenced. The county judge allowed
the plaintiff for one-half of the money received for the entire crop, deducting therefrom one-half the disbursements incurred in harvesting and delivering them to the market.
I think he reached a correct conclusion. The grapes were in existence at the time the bill of sale was executed, and they were capable of division by measure or weight and in accordance with the mode of gathering grapes in vogue in that locality.
The defendant and Stebbins were tenants in common of these grapes. ( Rice v. Peters, 128 A.D. 776; Dinehart v. Wilson, 15 Barb. 595; Taylor v. Bradley, 39 N.Y. 129; Reynolds v. Reynolds, 48 Hun, 142; Underhill Landl. & Ten. 311.)
The grapes were personal property. Stebbins was the owner of an undivided one-half of them on the vines and, consequently, could dispose of or make subject to a lien his interest therein. (Sexton v. Breese, 135 N.Y. 387, 391; Stall v. Wilbur, 77 id. 158; Beck v. McLane, 129 A.D. 745; affd., 198 N.Y. 567.)
The termination of the contract of letting by the defendant and Stebbins did not operate to extinguish the interest in the property which the plaintiff had acquired by the bill of sale. (Tiffany Landl. & Ten. 1349 et seq.; Eten v. Luyster,60 N.Y. 252, 259; Weiss ...