The appellant urges four objections to this judgment:
' First. He contends that the complaint does not state facts sufficient to constitute a cause of action. The complaint alleges that for the term of one year, from April 1, 1896, until April 1, 1897, the plaintiff worked this farm under an agreement with defendant that as compensation for so doing plaintiff should share equally with defendant the crops raised thereon ; and that in the fall of 1897 the plaintiff, with defendant’s knowledge and consent, sowed about eighteen acres of wheat. While the allegations are not as definite and clear as they might well have been, they are, in the absence of a motion to make more definite, sufficient to protect a recovery for a share in the wheat although it did not mature until the summer after the expiration of the term. The statement that the term was from 1896 to 1897 is an apparent mistake as appears from the other allegations in the complaint. It should have been from 1897 to -1898. • .
Second. The defendant further contends that .under the contract the plaintiff was entitled to no crops which could not be harvested before March 30,1898. The contract provides that “ At the end of the year all the rye or wheat to the amount of. 36 acres so sown by the second party is to be and belong to the first party.” This clause in the contract contains a clear implication that: the rye or wheat in excess of the thirty-six acres may be held as joint property. If the contract Avere in this respect of doubtful construction, it would be deemed settled by- the practical construction put thereupon in the permission by the defendant to the plaintiff to sow rye and wheat in excess of thirty-six acres. While this permission alone gives no rights, it may be considered in determining a doubtful clause in the contract.
Third. He again complains that the seven acres of buclcAvheat -land upon which the crop of rye Avas a failure cannot be included -in the thirty-six acres agreed to be left under the contract. This objection is not available to him at this stage of the case. The right ’ to include this seven acres as a part of the" thirty-six acres was submitted to the jury, in which submission the defendant acquiesced. After they have found against him upon that question, his objection comes too late.
*341Fourth. The defendant further argues that the measure of the-plaintiff’s injury is to be ascertained by finding the average yield, per acre both of wheat and rye and by giving to the plaintiff one-half of the excess over thirty-six acres less the cost of harvesting.. The tenant found thirty-six acres of rye upon the land. He covenanted to leave thirty-six acres of rye or wheat with, as we have held, ■ the right to one-half of the balance. A fair interpretation of the contract would allow and require, if there were thirty-six acres of rye and seventeen acres of wheat, that he should leave the rye as a substitute for the rye which he took; and the clause in the contract, providing that the thirty-six acres of rye or wheat should be left, means that, in default of the stated number of acres of rye, he might include wheat in the fulfillment of the obligation.
With the construction of the contract above given, it then simply becomes a question of fact for the jury to determine as to how much rye was left and as to the amount. of wheat in which the plaintiff was entitled to share. That wheat was owned by them as tenants in common. If by the contract the tenant is required to harvest the same, the defendant cannot complain when the tenant has been prevented .from harvesting by his prohibition. He was entitled, therefore, to one-half of the net surplus after having set off the number of acres of' rye sufficient to meet the contract, or in default of a sufficient number, a sufficient number of acres of wheat to make the required number of acres which he was to leave pursuant to the contract. The bill, therefore, for threshing and harvesting should ' properly have been deducted before the division was made and should not have been taken wholly from the plaintiff’s share. The appellant can make no complaint of the manner in which this case was submitted to the jury and an examination of the record discloses no sufficient reason for reversing their conclusion.
The judgment and order should be affirmed, with costs.
All concurred.
Judgment and order affirmed, with costs.