—By the agreement made between the appellee and Lee, the former was to receive for his services “three-sixteenths of all the cotton made on the place”, &c.; and if the agreement had stopped there, it might have been doubtful whether Harper would have been entitled to any portion of the cotton seed. But it is rendered certain by the last clause, by which Lee agrees to gin the cotton for Harper free of expense. This shows that the cotton was to belong to the latter before it was ginned, and, as the ginning was free of charge, the seed would belong to the pwner of the cotton. The agreement being in writing, it devolved on the court to construe it; and as the construction given was in conformity with the views we have expressed, there was no error.
We think, however, that the charge that the delivery of the cotton operated as a delivery of the seed, was erroneous. It is clear that, under the terms of the contract with Lee, Harper- was a co-owner with him both in the cotton and the seed, until their interests were divided. In the process of ginning, the lint and seed were separated, and the two became as essentially distinct as cotton and corn, and the severance of the share whicli the appellee had in the one would not necessarily bo a severance of his interest in the other. That would remain in the same condition as before the cotton was divided.
But it is urged, that no injury was done to the appellant by this error. No statement or complaint is found in the record ; but, as it appears that the parties appeared by attorney, we are authorized to presume, that it was dispensed with, or lost.—Bancroft v. Stanton, 7 Ala. 351. Giving the most favorable construction to the evidence set out in the bill of exceptions, it would not sustain a complaint ex contractu, for the reason, that although it tends to show a conversion, there is nothing conducing to prove that the wrong-doer sold, or converted the property into money.—Crow v. Boyd, 17 Ala. 51; Bohannon v. Springfield, 9 ib. 789. If we suppose the complaint was in tort, to recover damages for the conversion. *690then, under the charge, the jury might have found in favor of Harper, if his undivided interest in the seed was severed by the delivery of the cotton; while if he was simply the co-owner, the law, to sustain the action against his companion, would have required him to go further, and prove that the conversion went to the destruction of the chattel, or the exclusion of his right.—Parminter v. Kelly, 18 Ala. 716. The effect of the charge was, to place the appellee before the jury in the more favorable position of the several owner of the thing converted, and thus enable him to recover upon a demand and refusal, which might not have been sufficient if the other party was the owner in common with him.
Judgment reversed, and cause remanded.