Petition for rehearing denied January 23, 1934 ON PETITION FOR REHEARING (28 P.2d 848) In an earnest and able petition for rehearing counsel for appellant urges that error was committed in affirming the decree of the lower court since it affirmatively appears that the circuit court did not follow the method of computation approved by this court. Attention is directed to the following language in the opinion: "In view of the clear and explicit language of the lease, the trial court very properly charged against Ross the total cost of production and operation of the ranch and thendeducted the same from the gross receipts. After making such deduction, the net profits were divided equally between the plaintiff and the defendant." The particular clause of the lease upon the construction of which counsel cannot agree is as follows: "Said Ross shall properly prepare, cultivate, and crop said land at his own expense, save that the expenses of one farm hand shall be borne equally by said parties, profits arising from the operations of said land to be divided equally between said parties at the end of each crop year."
In the case of Peck v. Ross, 139 Or. 323 (3 P.2d 126,8 P.2d 780), wherein plaintiff was seeking an accounting against the defendant, the above provision of the lease was under consideration and it was held "that the lease did not provide for a division of the crops, but contemplated that at the end of each crop year, the profits arising from the operation of the ranch, should be divided equally between the landlord and the tenant". We adhere to the construction that the lease does not contemplate a division of the crops. It is also clear from the language of the lease that Ross was to bear alone the cost of the operation of the ranch, *Page 564 "save the expenses of one farm hand" which was to be borne equally by the landlord and tenant. If, as appellant contends, the cost of operation should be first deducted from the gross receipts, it must be apparent that Ross would not thus be charged with such costs. Such construction does violence to the lease. We are not unmindful that the ordinary lease is on a basis of one-third of the crop to the lessor and two-thirds to the lessee, but in the instant case the ranch was stocked and equipped by the plaintiff's predecessor in title, Dr. Goucher. We think it was the intention of the parties that Ross was to farm the ranch at his own expense, with the exception of one farm hand, and, after reducing the crops to money, to divide the same equally.
That part of the opinion to which counsel for appellant has directed attention and which is above quoted is not an accurate statement of the method of computation actually followed by the lower court. The trial court was right in dividing the profits and in charging against Ross the entire cost of operation. It is so provided in the lease.
In view of the farming conditions during the year in question and of the past achievements of Ross on the ranch, it is believed that the amount which was awarded to Ross is fair and equitable. It was wrong to evict Ross from the ranch, but his claim for damages is greatly exaggerated. The trial court made an earnest and sincere effort to compensate Ross for all the damages which he actually sustained. A further consideration of the records leads to the conclusion that the decree should be affirmed.
The petition for rehearing is denied. *Page 565