Appellee Thomas brought this action for the alleged wrongful conversion of a one-half interest in a wheat crop grown on appellants' farm after appellees had voluntarily cancelled and surrendered possession of said farm after serving one year of a five-year lease.
Appellee Thomas' complaint in one paragraph averred he was the owner of an undivided one-half interest in approximately 1,490 1/2 bushels of wheat; that appellants wrongfully appropriated and converted to their own use and sold said wheat to appellee Roanoke Elevator Company; that appellee Thomas notified said Elevator Company of his ownership of said wheat; that said Company purchased said wheat with full knowledge of his rights and it refused his demand for payment for said wheat. The complaint concluded with prayer for judgment of $1,500.00.
Appellants answered this complaint by an answer in two paragraphs. The first was an answer of admission and denial under the rules. The second was, in part, as follows:
It concluded with a prayer that appellee Thomas take nothing and for a judgment for their costs.
Appellee Thomas, in reply to this paragraph of answer, admitted the allegations of rhetorical paragraphs one and two, and denied the allegations of the third paragraph.
Appellee Roanoke Elevator Company filed an answer in two paragraphs. The first, of admission and denial under the rules. By the second it admitted the delivery
This cause was originally tried in the Huntington Circuit Court where there was a verdict for appellee. The court sustained appellants' motion for a new trial and the present action was venued to the Wells Circuit Court. Trial to a jury resulted in a verdict in favor of appellee Thomas for $1,500. Judgment accordingly. The error relied on here is the overruling of appellants' motion for a new trial. This motion contains twenty-two specifications. In view of the conclusion we have reached it is only necessary that we consider the last specification — that the court erred in refusing to direct a verdict for appellants and against appellee Thomas at the close of all the evidence.
There is little dispute as to the facts necessary to a determination of the question presented here. Appellants owned a farm of 270 acres in Huntington County. It was operated as a dairy farm. Appellee was a tenant of this farm from 1938 to 1941. In the late summer of 1944 appellant Edgar Nash called on appellee and discussed generally with him the subject of appellee again becoming a tenant on this farm. They discussed a fifty-fifty basis. Subsequently, on the 31st day of August, 1944 the parties entered into a written lease for the period beginning March 1, 1945 and ending March 1, 1950. We do not deem it necessary to set out
Before taking possession of the farm on March 1, 1945 appellee sowed about fifty acres of wheat which was harvested and sold in November, 1945. The proceeds of this sale were divided between the parties. Prior to March 1, 1945 appellant agreed to leave his chickens on the farm and it was agreed they would receive fifty-fifty of the proceeds from the chickens and eggs. All of the parties agreed this was the only oral change made in the written agreement between them. Appellee testified that from March 1, 1945 to March 1, 1946 everything that was bought and sold on the farm was divided fifty-fifty on a monthly basis as usual under a livestock contract. In the early fall of 1945 appellee prepared the ground and sowed about 42 acres of wheat. In November, 1945, appellee purchased a farm. He then went to appellants and asked them if they would relieve him from his contract. They agreed to terminate the lease as of March 1, 1946. The parties agreed to have a public sale of all livestock and farm produce on February 14, 1946. On or about March 6, 1946 they made final settlement and each of the parties signed a release of all liabilities under the contract. (This release hereinbefore set out in statement of pleadings.) In the release signed by appellee there was no reservation of growing crops. All of the parties agree there was nothing said about the growing wheat crop during the negotiations for the cancellation of the lease agreement or at the time the mutual releases were made. In July, 1946 appellee sent his man to appellants' farm to combine the wheat. Appellants refused and said when appellee signed the release he had no further rights in the wheat.
Appellee contends the written contract between the parties did not contain all of the essential terms of the contract. He asserts it made no provision that appellants were to receive anything from the sale of grain, milk, other farm products, milk subsidy and farm conservation. He further contends he entered the farm under the terms of the oral contract, and not under the terms of the written contract. Therefore he says, because an oral agreement for a five-year lease was invalid under the statute of frauds the contract of the parties was for a year to year lease. For the reasons hereinafter stated, we cannot agree with this contention.
It is an elemental principle of the law of contracts that when the agreement of parties is reduced to writing all prior negotiations between the parties are merged into the written agreement. It is undisputed that the parties entered into and executed a written lease. The appellee testified, in substance, that the discussion about the written contract not actually expressing the agreement between the parties was caused by the failure of the party who wrote the contract to say how the proceeds from the sale of crops was to be divided. Certainly it cannot be seriously contended that the mistake of the scrivener in not specifically setting out the provision for a division
We next proceed to a determination of the question whether, under the terms of the lease and the written cancellation thereof, appellee was entitled to one-half of the proceeds from the sale of the wheat involved in this action.
Under the title "Landlord and Tenant", 51 C.J.S. 1040, § 349-d, it is stated:
Under the title "Crops" in 15 Am. Jur., 215, § 23, it is stated:
The only case in this state which has been called to our attention bearing on this matter is the case of Miller, Administrator v. Wohlford et al. (1889), 119 Ind. 305, 21 N.E. 894. There the appellant's deceased had been willed by her husband for her natural life one-third of all the grain which should be raised on certain farm property. The property was devised to the testator's children and grandchildren, subject to the right of the widow as above set out. Appellant's deceased died in May, 1887, after a large crop had been sowed. This crop was harvested after the death of appellant's decedent. Appellant sought to obtain the share of his decedent. In affirming the judgment of the trial court which found against appellant, the Supreme Court, at pages 308 to 310, reviewed exhaustively the law in actions to recover the value of emblements. The opinion states the three essential elements necessary for such recovery (set out in the authority quoted above). While in that case the court held there was no tenancy it does support the principle upon which appellants herein rely.
The case of Emma O'Leary, Administratrix v. Alexander Harris (1916), 89 N.J.L. 671, 99 A. 774, was in many respects analogous to the facts herein. This is particularly true as to the release therein. In referring to that release, the New Jersey Court said:
It is clear to us from the record herein that appellee cancelled the lease herein. It makes no difference that appellants acquiesced in this. When he released appellants from all obligations under the lease he made no reservation of the growing crops. Therefore they became the property of appellants. The trial court erred in not directing a verdict in their favor at the conclusion of all the evidence.
Judgment reversed, with instructions for further proceedings in accord with the views expressed herein.
Crumpacker, P.J., not participating.
NOTE. — Reported in 110 N.E.2d 355.