(concurring specially). I concur in the conclusion reached in the opinion prepared by Mr. Justice Eobinson. I agree that the judgment in thé injunctional action is not res judicata in this case. The question involved in that case was the right of pos*464session, of the grain and hay produced. The written contract contained a stipulation to the effect that the owner of the land (the defendant in this case) was vested with title to all grain and hay until a division was had between the parties. Under the construction placed upon such stipulations prior to the time of the trial of that action, the owner of the land could enforce such stipulations regardless of whether he had any claim against the tenant or not. The question of the amount of the indebtedness, if any, which the tenant owed to the landowner was not involved in that,case, and in the memorandum, filed by the trial court in that case, he expressly reserved to the tenant the right to maintain an action such as the one before us.
I also agree that there was an issue for the jury as to the amount, if any, due to the plaintiff. Therefore, judgment notwithstanding the verdict should not have been ordered, and the judgment rendered upon the verdict should be reinstated.
Bronson, J., concurs.