(dissenting). I dissent. As stated in the majority opinion, the grain involved in this controversy was produced in the year 1918. It was raised on certain land belonging to the defendant. Plaintiff farmed this laud under a contract, which provided, inter (dia>, “until all the covenants and agreements to be performed by the party of the first part (plaintiff) shall have been fulfilled and . . . division made the title and possession of all crops . . . and products raised, grown, or produced on said premises shall be and remain in the party of the second part (the defendant).” It is true, as stated in the majority opinion, that at the time the grain was threshed it was in fact divided by the “separator-man” into two parts, one equal to that which belonged to the defendant, and the other equal to that which would belong to the plaintiff, and which he would be *218entitled to receive, upon the performance by him of what he had agreed to perform under the contract. It is undisputed that at the time the grain was threshed plaintiff had not done certain things which he was required to do under the contract. For instance, he had not plowed a certain number of acres which he was required to plow back. At the time the grain was threshed, 250 bushels of plaintiff’s share of the wheat was placed in a bin bn the land where it was grown. Plaintiff says that it was placed there with the understanding that it was to be held as security for the plowing which plaintiff was obligated to do by the terms of the contract. It is therefore contended, by plaintiff’s counsel, that the grain was in fact and in law divided under the terms of the contract, and that title vested in each of the parties to their respective shares; and that the 250 bushels of wheat could be held as security for the plowing only, and not for the performance of any of the other obligations under the contract.
It is true, as stated in the majority opinion, the evidence does show that at the time the grain was threshed, the separator-man divided the •grain into two equal parts. The defendants testified that nothing was said at the time in regard to division. There is no basis in the evidence, however, for the claim that defendant intended to turn over to plaintiff all of the grain which the contract stipulated should eventually belong to the plaintiff, or that defendant intended to waive his rights to retain such grain as security for the performance by the defendant of those acts which ho had agreed to perform under the contract. On the contrary defendant testified that he never consented to the removal by the plaintiff of such grain. And the evidence shows that, prior to the threshing, there was an understanding between the parties upon this matter. This is not disputed.
Plaintiff testified:
Q. Did you have a talk with him (defendant) there about what was to be done with this wheat when it was threshed ?
A. Yes, sir.
Q. Did he ask you to put it in his shack on this place ? In his building there, this wheat of yours?
A. He did before we separated. . . .
Q. Did he tell you that he wanted it held out until you had performed the contract and paid him what you owed him?
*219A. I already knew he would hold it. ... I asked him if it would be satisfactory with him if I built a bin by the side of the separator and run my share or at least 250 bushels of my share of the wheat into that bin and leave it on his place until I finished the plowing. . . .
Q. And it was understood that he was to hold this grain until you had paid up and performed the contract on your part, was it?
A. It was understood in the contract that I was to leave 250 bushels of wheat.
Q. It was understood at the time that you had this- grain poured into your bin and the grain poured into" his wagon that that was what was to be done with the part run into your bin, held by him until you performed the plowing specified under your contract 'and did what you were to do under it ?
A. It was understood that that grain was to stand as security for my fulfilment of the contract. . . .
Q. In other words, he was holding it there to fulfil the contract.
A. Certainly. . . . He told me at all times that this grain was to remain in his hands until the fulfilment of the contract.
Q. And he never told you that you could take it or have it at all ?
A. Certainly not; I had no desire to take it.
The court instructed the jury: “I also charge you that when grain is separated by the parties or in their presence, and no agreement is made that such agreement shall constitute a division, then such action constitutes a division.”
I do not believe that it follows as a matter of law that the mere separation of grain into parts at the time of the threshing constitutes a division thereof under the terms of a farm contract like that under consideration here. Whether there was or was not such a division would depend on what the parties to the contract intended. Manifestly it is more convenient to make physical division of the grain at the time it is threshed, but there is no reason why the grain might not still remain subject to the terms of the contract. That seems to have been the case here. In view of the evidence, which I have quoted above, I am of the opinion that the instruction quoted was prejudicial to the defendant.
In his complaint the plaintiff alleged that he had been damaged, *220among other things, in the -sum of $7 5, attorney’s fees expended in this action. And upon the trial he was permitted, over objection, to introduce evidence to the effect that he had agreed to pay his attorney $75 for bringing the action. In its instructions the trial court informed the jury that if plaintiff was entitled to recover at all, he might “also recover his necessary expenses in recovering the property.” The jury was therefore permitted to allow the plaintiff as part of his damages in this case the attorney fees incurred or charged against him for bringing this action. In my opinion such attorney fees were not a proper element of damages in this ease, and it was error ,to admit evidence relating thereto, and to permit the jury to consider it.
It seems, also, that even under plaintiff’s version of the controversy, the action was instituted prematurely. Plaintiff testified that he did not finish the plowing until May 6, 1919. This action was commenced April 12, 1919.
The various propositions to which I have alluded were raised in the trial court. As already indicated, I am of the opinion that the trial court erred, to the prejudice of the defendant, and that the judgment should be reversed and the case remanded for further procedings according to law.