Bromley v. Miles — 51 A.D. 95

Majority

p. 95

John H. Bromley, Respondent, v. Rhoda E. Miles, Appellant.

Headnote

Ail oral contract between a husband and wife for the, working of the wife’s farm— Statute of Frauds—■ until repudiated the crops belong to the husband.

An oral contract made between a husband and wife in consideration of their marriage, by which the -husband is to work his wife’s farm, provide for their support out of the proceeds and retain the balance as his own property, is void under the Statute of Frauds; but where the husband takes possession of the farm under the contract and duly performs- the same until his wife repudiates it, he may maintain an action, for the conversion of hay and other crops harvested by him before such repudiation, against a person to whom his wife sells such crops, and who exercises dominion over the same after notice of the husband’s claim.

Appeal by the defendant, Rhoda E. Miles, from a judgment of the County Court of St. Lawrence county in favor of the plaintiff, entered in the office of the clerk of t 3 county of St. Lawrence on the 21st day of October, 1899, upon the verdict of a jury for $144.14, and also from an order'entered in said clerk’s office on the 19th day of October, 1899, denying the defendant’s motion for a new trial made upon the minutes.

Worth Chamberlain, for the appellant.

Bowers & Russell, for the respondent.

From February, 1897, to August 8, 1898, the plaintiff was, as he claims, in possession of the farm of his wife under an arrangement by which, in consideration of their marriage, lie was to carry on the farm, provide for the support of his wife and himself out of the proceeds, and have the balance, if any, as his own property. He claims that up to August 8, 1898, he had fully performed upon his part. He had put in certain crops, which.at that daté were not harvested. He had cut the grass and stored the hay in the barn. On the 27th of July, 1898, the plaintiff’s wife conveyed the farm'to the defendant, and gave her a bill of sale of the hay and crops and some other personal property. The defendant notified the. plaintiff that she owned all the property, forbade his taking any of it away or meddling with it, and, on the eighth of August, directed him to leave. He did so. He then sued her in conversion for the hay and

p. 96

crops, and has recovered their value. - The recovery is necessarily on the theory that he was the owner of the crops, including the hay. Flo distinction was made at the trial between the hay and the other crops. •

The defendant claims that there was no such contract as the plaintiff' claims. This question the jury, upon sufficient evidence, decided in favor of the plaintiff. The court held that if there was such a'contract it was void under the Statute of Frauds, not being in writing, but charged the jury that if the plaintiff went into possession under the contract and in its performance put in the crops and carried on. the farm, performing the .contract upon his part, he was the owner of the crops. This view is sustained by the case of Harris v. Frink ( 49 N. Y. 24 ).

Whether plaintiff was in possession under the contract and had performed up to the time it was repudiated by the wife were questions of fact. The crops were all put in and the hay harvested before the repudiation.

The court did not err in refusing to hold as a matter of law that the plaintiff and his wife were tenants in common of the crops. At most it was a question of fact (Martin v. Rector, 101 N. Y. 77 ), and'no special submission of that question to the jury was asked for.

It is claimed by the defendant that no sufficient demand upon the defendant was shown. FTo question as to this was made upon' the motion for a nonsuit at the close of plaintiff’s evidence, nor upon the motion at the close of the case except in connection with the idea of a tenancy in common between plaintiff and his wife. There was evidence tending to show that defendant after notice of plaintiff’s claim exercised dominion over the property in question. She forbade the plaintiff taking any of it awáy.' The court in its charge seems to’ have assumed that there was no question about a demand and there was no request to charge on the subject.

If the plaintiff at the time of the conversion was the' owner of thé property, he had a right to recover its full value. ■

I fail to find any good reason to disturb the verdict upon the faciis, or any reversible error of" law on the part of the court.

All concurred.

Judgment and order affirmed, with costs.

Cases cited

Harris v. Frink 49 N. Y. 24 N.Y. 1872-03-26 p. 96
Martin v. Rector 101 N. Y. 77 N.Y. 1886-01-19 p. 96