Lehr v. Taylor , 1879 Pa. LEXIS 266 ( 1879 )

Mr. Justice Paxson

delivered the opinion of the court,

The plain tiff worked the defendant’s farm upon the shares. By the terms of the lease, he was to have half the grain, but the right of possession thereof in the fields or in the barn was to be in the defendant until divided and his share delivered to him, under the terms of the lease. The plaintiff moved off the farm in the spring of 1876. The wheat which is the subject of the present contention, was sown the previous fall, and harvested during 1876. It was therefore one of the crops of the year 1875. The defendant refused to allow plaintiff to take his share thereof, upon the allegation that the plaintiff had fraudulently withheld a portion of the corn and other crops for the year 1875. Thereupon the plaintiff brought this action of trover and conversion, to recover the value of one-half the wheat crop. Upon the trial in the court below, the defendant contended, 1. That the action of trover and conversion would not lie; and 2. That if it were the proper form of remedy, the defendant could show, in mitigation of damages, that the .plaintiff had fraudulently withheld a portion of the crops, and could recoup the value thereof in this proceeding. Both these points were ruled against the defendant, the learned judge holding that in an action in form ex delicto, no set-off can be allowed.

We are of opinion that the plaintiff has mistaken his form of action. The possession and the right of possession of the grain was in the defendant until divided as stipulated in the lease; not as to the wheat crop alone, but as to all the crops of grain and hay in the fields or in the barn. If therefore the plaintiff had appropriated the corn and other crops to his own use, in fraud of the rights of his landlord under the lease, tvould he also be entitled to demand a division of the wheat and sue the latter in trover and conversion upon a refusal? We need not argue such a plain proposition. The possession being in the defendant, the action of trover cannot be sustained. Nor does it matter that the defendant sold the wheat and received the entire proceeds, if, as he alleges, the plaintiff had in his hands more than the amount unlawfully withheld from him. Had the plaintiff brought his action upon the lease all questions arising under it could have been properly adjusted. The attempt to settle only so many of them as suits his convenience is ingenious, but carries with it the penalty of failure by reason of a mistake in the form of action.

As this view is decisive of the case, we need not discuss at length the question raised by the second and third assignments. The general rule is as stated by the court below', that in actions ex delicto, a set-off is not admissible. But the evidence offered here was not by way of set-off, but of equitable defence as to matters growing out of the same transaction. There is a line of cases which go very far towards establishing its competency. See Heck v. Shener, 4 S. & R. 249; Romig v. Romig, 2 Rawle 241; Saam v. Saam, 4 Watts 432. There is a growing disposition to favor every principle that avoids circuity of action. There is ahvays a saving of expense, and sometimes a great gain to the cause of justice by hawing one jury pass upon the whole case.

Judgment reversed.