(dissenting). In this case plaintiff sues to recover oats, 936 bushels, and barley, 633 bushels, or the value of the same. The case was tried to a jury. Both parties moved for a directed verdict; the court made findings of fact and conclusions of law and gave judgment for the plaintiff, and defendant appeals.
As the complaint and evidence show, in September, 1909, the plain tiff contracted to sell defendant a half section of land in Pierce county,, for yearly payments, thus: $3,800, $3,000, $3,000, $3,000, with annual interest to be paid on the 1st of December of each year, commencing in 1910. The written contract contained a clause as follows: That until the payment each year of the payment due each year hereunder to the said first parties, the legal title to and the possession of all grain grown upon said land during that year shall be and remain in the second parties as owners thereof. In each of the four years the payments were about equal the interest. In 1914 the defendant concluded to abandon the land, and to take all the crops of that year without making any payment on the sum of about $12,000. His claim is that, under the literal terms of the contract which he himself had drafted, the plaintiffs had no title to or interest in crops produced in the year 1914. That is clearly contrary to the plain words of the contract, which gives plaintiffs the yearly crops to secure the amount due in each year. In the year 1914 the amount due was about $12,000.
The only real question is in regard to the identity of the grain, which the plaintiffs were forced to replevin and take under claim and delivery proceedings. The plain duty of the defendant was to keep separate the plaintiffs’ share of the grain, and deliver the same on demand, and not to try to defeat a just claim by any play of tweedle dum or tweedle di dum or hide-and-seek. The complaint and replevin papers were for 936 bushels of oats and 633 bushels of barley grown during the season of 1914 on the land in question. (W-| — 21—158—Y3.) The return of the sheriff is that in January, 1915, he served the summons and replevin papers personally on defendant, and took from a granary on the place' 936 bushels oats and 48Y bushels barley. The answer contains merely a general denial and an averment that the property taken was worth *413"$1,430, and demands judgment for the same. It does not aver that the ¡grain taken is not the identical grain grown on the place, nor is there any .showing or attempt to show that such a claim was made to the sheriff when he took the grain, — and that was the time for the defendant to speak and to show the sheriff the grain grown on the land. The land was rented by the defendant and he was to have half the crops. The grain was taken from the granary on the land, and the tenant did not claim that the sheriff took his share of the crops. As appears from the testimony, there was grown and threshed 1,872 bushels of oats, and the sheriff took 936 bushels and no more. There was grown 1,200 or more bushels of barley. Defendant took two or three hundred bushels, and the sheriff took half the remainder, or 487 bushels, 12 pounds. Defendant testifies that the division of the crops was made by the tenant that farmed the land, and that the sheriff took all grain produced on the land that he, the defendant, did not take.
At the close of all the testimony Mr. Nelson, counsel of defendant, moved for a dismissal of the case and a directed verdict. Then a recess was taken for a few minutes, on motion of counsel for the defendant.
After the recess an offer was made to prove by defendant that the grain taken by the sheriff was not grown on the place. The offer was properly denied. It was contrary to the pleadings and the prior testimony of the defendant. It was offering a new issue after the close of the case. It was an offer to impeach the conduct of both the defendant and his counsel. It was the duty of the defendant to point out and deliver to the sheriff the grain grown on the place. In the conduct of a lawsuit there is a time for candor and fairness. There is no time for deception, duplicity, or boy play.