We are of opinion, that the decision of the Court of "Common Pleas was correct in respect to the hay, it being the property of the plaintiff, of the growth of 1830, and not embraced by the written agreement.
It is clear that the plaintiff is entitled to recover for the 9 bushels of oats, though for a different reason. The defendant was to cultivate the farm and deliver over to the plaintiff half of the produce, after it was harvested. By the sale of these oats he had put it out of his power to deliver them to the plaintiff, and the money which was received for them belonged to the plaintiff.
The 32 bushels of oats and the 6 bushels of rye are expressly referred to in the written contract, and were delivered to the defendant under it, and the plaintiff agreed to receive payment for these articles, in kind or in money. The paymer.
The cause was afterwards tried in this Court, before Shaw C. J., when it appeared in evidence, that the defendant entered upon the farm in April, 1831 ; that he received from an agent of the plaintiff, occupying another farm of the plaintiff, about 2 tons of hay, and about 33 bushels of oats, the property of the plaintiff, being tbe produce of the lastmentioned farm, of the preceding year; and that the hay and oats were thus taken by the defendant by the authority of the plaintiff.
No demand having been made-, and no notice having been given, and no division of the crops having taken place, before the commencement of the action, an opinion was expressed by the judge, that so far as these articles were delivered to the defendant in pursuance of the special contract, to be paid for in the special manner therein provided, this action for goods sold and delivered could not be maintained ; but for goods not so stipulated to be furnished and paid for, tbe law implied a promise from the sale and delivery, and the action would lie ; that it appearing that the contract had provided for the delivery both of grain and seeds, to be paid for after harvest, in kind, or at an appraised value, the oats would fall under the one or the other of these denominations, and for these the action could not be maintained ; but there being no stipulation for tbe delivery of hay, that stood upon the general ground of an implied contract to pay the value of the goods. Whereupon the defendant consented to be defaulted, subject to the opinion of the whole Court. It was agreed that damages for the hay should be assessed at $ 18, and if the plaintiff was entitled to recover for the oats, then the sum of $11’67 was to be added to the damages; otherwise they were to stand at $18, and judgment was to be entered, in either event, for the plaintiff.
The plaintiff’s counsel afterwards filed a motion for a new trial, on the ground that he had mistaken the former decision of the Court, and had therefore offered evidence respecting the 32 bushels of oats, and omitted to offer evidence in regard to
The case was submitted without argument; and the Court, considering that there was reason to believe that the plaintiff was entitled to recover for the 9 bushels of oats, were of opinion that a new trial ought to be granted, but upon the terms that the plaintiff should not recover costs for the last trial or the next.
Jlshmun objected, that according to the agreement at the last trial, the default was to be taken off, only in case the decision of the judge should be determined by the whole Court to have been incorrect, and that it had not been so determined ; but on the part of the Court it was answered, that such agreements are subject to the order of the Court.