(concurring in part and dissenting in part). I concur in the construction placed upon the contract between the parties to this litigation in the opinion prepared by Mr. Justice Grace. But I am unable to concur in that part of his opinion wherein the rejection by the court of certain evidence, offered by the defendant with respect to the identity of the grain seized by the sheriff in the claim and delivery proceedings, is held to be reversible error. In the complaint the plaintiffs claim the ownership of certain grains grown during the year 1914 on lands described in the contract involved in this case. The ■defendant’s answer consists of a qualified general denial and an allegation that the property taken from the defendant is of the value of $1,430. The case was tried to a jury, but, as both parties .moved for a directed verdict at the close of all the testimony, the jury was discharged, and the trial court made findings of fact and conclusions of law in favor of the plaintiffs.
It is well to remember that a claim and delivery proceeding is not .an action, but merely an ancillary proceeding, and does not necessarily affect the issues in the main action. The statutory claim and delivery proceeding differs to some extent from the common-law action of replevin. The only issue framed by the pleadings in this case was whether the plaintiff was the owner, and entitled to the possession, of the property described in the complaint, or the value thereof in case a return could not be had. The determination of this question depended *411principally upon the construction of a certain contract. There was no dispute in the evidence as to the amount or value of such grain. In fact the amount and value found in the judgment in this case is based upon the testimony of the defendant himself. The members of this ■court are all agreed that the plaintiffs are entitled to judgment awarding them the possession of the grain grown during 1911 upon the lands described in the contract, or the value of such grain, in event .a possession thereof cannot be had.
The findings of fact do not purport to pass upon the identity of the grain. They merely find that plaintiffs are entitled to the possession of the grain, and fix the amount and value thereof. There is no finding to the effect that the grain seized by the sheriff in the claim and ■delivery proceeding is the grain described in the complaint. Consequently there is no contention that the facts found by the trial court -are erroneous. On the contrary the majority opinion fully confirms the correctness of the findings of fact in every particular.
It is true the court received in evidence the sheriff’s return in the claim and delivery proceeding, and rejected certain evidence offered by the defendant tending to show that the sheriff had seized some grain not involved in the action. It is also true that, in its conclusions of law and in the judgment entered, the court provided that plaintiff retain possession of the grain seized by the sheriff. While the rulings on the reception and exclusion of evidence were inconsistent, it is only fair to the trial court to say that only a general objection was made to the sheriff’s return when it was offered in evidence. But manifestly the reception of this evidence and the exclusion of the evidence offered hy the ■defendant in no manner affected the right of the plaintiffs to the relief demanded in their complaint. The members of this court are all agreed that the plaintiffs are entitled to the relief sought. In so far as the conclusions of law and the judgment entered sought to award to plaintiffs the grain seized by the sheriff in the claim and delivery proceedings, they are erroneous. But in my opinion it is not necessary or proper to order -a new trial, but the judgment should be modified by striking therefrom the provisions awarding to the plaintiffs the right of possession of the grain seized by the sheriff. The judgment as thus modified.would award to the plaintiffs a judgment in the alternative for the possession of the grain described in the complaint, or the value thereof in case *412possession cannot be had. And every member of this court is agreed that plaintiffs are entitled to such judgment.