ON REHEARING. This opinion is on rehearing, granted in Asher v. Linn,297 Mich. 699. The court authorized a supplemental record of testimony at the hearing in the circuit court. The point in issue is whether, as claimed by plaintiff, in leasing defendant's farm on shares he was given ownership of one-half interest in the livestock, except horses and chickens, on the farm at the date of the lease. The lease was drawn by a layman and provided:
"Party of the second part (plaintiff) is to pay $500 for the use of all of the equipment of said farm which includes the horses, tools, and the one half of all the livestock, cattle, sheep, hogs, chickens excepted. * * *
"Cattle: Each party is to have an equal interest in all cattle and each party is to have equal shares in all of the proceeds and increase from the above-named cattle.
"Hogs: Each party is to have equal shares in all the hogs and is to have equal shares in all the increase and also proceeds from the hogs.
"Sheep: Each party is to have equal shares in all of the sheep and each party is to have equal shares *Page 710 of all of the increase and wool. Each party is to pay one half of the shearing of the sheep.
"Poultry: Each party is to have equal shares in all poultry and is to have equal shares in all the increase and proceeds from the same.
"All stock is to be fed out of the undivided hay and grain."
The supplemental record shows that at the hearing in the circuit court plaintiff testified there was on the farm when he went there:
"Twenty cows, 5 heifers, 7 calves, just weaned, 3 calves fed by pail, 2 yearling bulls, 2 sows, 4 little pigs, 62 sheep, 6 work horses, 1 sucking colt. That includes the livestock. 600 bushels of oats, grain, 100 bushels of wheat, 50 bushels of barley. No corn in the crib. No hay, no ensilage, no clover-seed, very little straw."
Plaintiff testified:
"I paid $500 for the use of the tools for five years and any time during that five years if I bought in I would pay $500 a year on the tools and horses, they would be inventoried and no time set. * * *
"Q. It was $500 according to your understanding of the lease, did that have anything to do with the livestock, cattle, sheep, hogs and so forth?
"A. No, sir.
"Q. It refers to one half of the livestock, cattle, sheep, hogs, doesn't it?
"A. Well, it should not be —
"Q. Do you mean by that that Mr. Liverance did not draw it up the way it was talked over between you and Mr. Linn in that respect?
"A. That was not the agreement.
Mr. Liverance testified that the parties were present when he drew the lease:
"Q. Was there any talking between them that you recall or were you told by either of them that Mr. Linn was conveying or giving to Mr. Asher in *Page 711 the lease a half interest in all of his livestock that was then on the farm, sheep, hogs, and so forth?
"A. No.
"Q. I understand you just stated that you were not instructed by either of them to provide for the conveyance of half the cattle, hogs, sheep on the farm from Mr. Linn to Mr. Asher and I take it it was not your intention to draw up those paragraphs that are referred to, to convey half the sheep, cattle, hogs and so forth then on the farm to Mr. Asher?
"A. Why I understood he was leasing the farm and each one was to have a half interest in all the proceeds of the increase. That is the way I understood it.
"Q. Why did you use the phraseology you did, then, 'Each party,' for instance under 'cattle,' is to have an equal share in all cattle?
"A. Well that is the usual way of drawing a farm lease.
"Q. And what did you mean to accomplish by using — what did you intend to express by using those words, 'each party is to have an equal interest in all cattle'?
"A. Well I don't know as I know any more than I supposed that the proceeds of the cattle, hogs and sheep was to be divided equally between the two parties.
"Q. Do you recall any discussion or conversation at that time between Linn and Asher in regard to that point?
"A. I don't remember of anything like that talked about.
"Q. You understood then that Mr. Asher was to share the proceeds from half of the cattle and hogs and sheep?
"A. Yes."
The circuit judge took an account between the parties, construed the lease, and found:
"Neither party claims, however, there was any understanding that plaintiff should pay for half of *Page 712 the livestock in the manner indicated. As before stated, it is plaintiff's position that he is entitled to receive one-half interest therein without making any specific payment therefor, other than the carrying out of the lease. Obviously such interpretation, as well as the interpretation suggested by the language used by the scrivener, would lead to the conclusion that the determination of the question as to whether title to the stock actually passed would necessarily have to be held in abeyance pending the completion of the five-year contract, otherwise a failure of consideration might result. Viewing the situation in the light of the probabilities, and having due regard for the value of the property, as well as the situation of the respective parties, I am brought to the conclusion that defendant's contention is correct. In any event, I am impressed that there was no understanding or agreement on his part to the effect that plaintiff should receive a one-half interest in the stock then on the farm."
It is manifest from plaintiff's testimony that the $500 mentioned in the lease was not to be in payment for one half of the livestock, and the court was right in so finding.
The decree is affirmed, with costs to defendant.
BOYLES, NORTH, and BUSHNELL, JJ., concurred with WIEST, J.