April 1, 1913. The opinion of the Court was delivered by *Page 217 Plaintiff brought this action to recover the value of his share of a cotton crop raised on defendant's land, and also the value of certain small crops, which belonged to him individually. He alleged that defendant compelled him to leave his place in August, and refused to allow him to gather the crops, and that defendant had gathered and appropriated them to his own use.
Defendant denied that he had compelled plaintiff to leave, and alleged that, having violated the terms of the contract, plaintiff abandoned the crop and left, and he was put to the expense of raising and harvesting it, and, after deducting said expenses and plaintiff's indebtedness to him, there was nothing left of plaintiff's share.
There was sharp conflict in the testimony as to whose fault caused the breach of the contract. Defendant's attorney requested the Court to charge: "It is incumbent upon the plaintiff to show by preponderance of evidence that he executed his part of the agreement as alleged in the complaint; and if he has failed to do so, or did not carry out and execute his part of the agreement, or voluntarily abandoned said crop, you must find for defendant." The Court declined to charge this request, but charged, in response thereto, as follows: "If the plaintiff had a contract with the defendant and abandoned the crop, and made it necessary for the defendant to gather it, the defendant would be allowed to charge whatever it cost him to gather the crop. I will go to that extent and charge you that."
We think his Honor erred in so charging; for, in the connection in which it was given, the instruction necessarily implied that, even though plaintiff voluntarily abandoned the crop, he would be entitled to share in the surplus, after payment of all expenses of gathering it. When a cropper voluntarily abandons a crop, without fault on the part of the landowner, he forfeits all interest therein. 12 Cyc. 981. A moment's reflection, in which the situation of the parties to such a contract is considered at its various *Page 218 stages, from the making to the completion thereof, will show that the rule announced by the Circuit Court might work great injustice to the landowner. Suppose, for instance, the cropper voluntarily abandons his crop and contract in the early spring, just after it is planted, under this ruling, the landowner would be compelled either to lose the fertilizer and seed which had been put into the ground, and, perhaps, also the use of his land and the stock and implements which he had procured and set apart for the use of the cropper, or employ other help and carry the crop to completion. Yet, if he did the latter, he would have to share the profits with the cropper whose abandonment of his crop and breach of his contract were without cause or excuse. A different rule would apply, if the abandonment was due to misfortune or to some just cause, but where it is done voluntarily and without reasonable cause or excuse, the cropper is certainly not entitled to share in the crop so abandoned.
It is but fair to the learned Judge to say that the request above quoted was improperly presented, in that it was done orally, and in the midst of the charge, and, therefore, he had no opportunity whatever to consider it. Under the circumstances, he would have been fully justified in refusing to consider it at all.
The rule of Court requires that requests to charge must be presented in writing, and before the argument begins. This was intended to give the trial Judge opportunity to consider them during the argument to the jury. The rule also provides that, at the close of the argument, such additional requests as have been suggested by the course of the argument may be presented; and it would be proper for counsel, at the close of the charge, to present such additional requests as have been suggested by the charge, and that is the proper time to call the attention of the Court to errors or omissions in the charge which counsel reasonably suppose are due to inadvertence, oversight, and, perhaps, other causes. But the circumstances would be rare, indeed, which *Page 219 would warrant counsel in interrupting the Judge, while he is charging the jury for such purpose.
Reversed.