Callender v. McLeod ( 1887 )

Hayne, C., dissenting.

The case is, perhaps, a close one; but I do not think the case is one of exchange, as supposed by my associates. There was nothing in existence to exchange for the seed wheat. It was expressly agreed that the plaintiff was to take two sacks for one out of the crop, and that as no crop was produced, he was to get nothing. If that contingency happened,— that is to say, if no crop was produced,—how could there be an exchange? By the first agreement the parties were tenants in common of the crop. (Bernal v. Hovious, 17 Cal. 542; 79 Am. Dec. 147; Knox v. Marshall, 19 Cal. 617.) This was conceded on all hands, and on this theory, the share of plaintiff under his first agreement was delivered up to him. Now, the second agreement-was simply to increase this share. I cannot see anything in the circumstances to indicate that the share coming to plaintiff in return for the seed wheat was to be of a different status from the share coming to him for the use of his land. It seems to me that the judgment was right, and should be affirmed.

Paterson, J., McFarland, J., and Thornton, J., concurred in the opinion of Commissioner Hayne.

Rehearing denied.