Boyle v. Northwestern Nat. Bank of Superior, 125 Wis. 498.

that the lowest balance to the credit of Schwedler between December 9, 1901, and February 10, 1902, was $153.50, on January 2, 1902. Since no money belonging to any of the interveners went into the bank prior to the day and year last mentioned, it is manifest that the $153.50 so to the credit of Schwedler January 2, 1902, was in equity the property of Boyle. It is also manifest, upon the principles stated, that the moneys belonging to Boyle which had been drawn from the bank on the checks of Schwedler prior to January 2, 1902, cannot be reached by him in this action. It appears from the findings and is undisputed that after January 2, 1902, and during that month, there were deposited in the bank to the credit of Schwedler moneys belonging to the following interveners, respectively, in the amounts stated, to wit: Wibe, $426.92; Anderson, $430.38; McNeil, $147.35; and Brown, $165.20-making in the aggregate, with the amount so be longing to Boyle, $1,323.35. It also appears from the findings and is undisputed that the intervener Larson shipped to Schwedler a carload of grain, which he sold on commission, and the proceeds thereof, amounting to $527.78, were deposited in the bank to the credit of Schwedler February 4 and 8, 1902, and that after paying therefrom the freight, inspection, and other charges, including commissions, the balance thereof, amounting to $439.08, belonged to Larson, and that after such deposit of the proceeds of Larson's grain "the only checks drawn or paid upon said account were three in number, amounting in the aggregate to $109.20." Assuming that this amount was all paid from the proceeds of Larson's grain, then, by deducting this amount from the $527.78, the proceeds of Larson's grain so deposited, there remains a balance of at least $418.58 as belonging to Larson, and which must have been in the bank to the credit of Schwedler on the morning of February 10, 1902. We perceive no reason why Larson is not entitled to that amount in the judgment to be entered in this action. Deducting the $418.58 from the $648.13

Taylor v. Donahoe, 125 Wis. 513.

standing to the credit of Schwedler on the morning of February 10, 1902, and it leaves a balance of $229.55 to be distributed to Boyle and the four interveners whose moneys went into the bank to the credit of Schwedler in the month of January, 1902, as stated, according to their proportionate shares thereof in equity; that is to say, to Boyle $26.63, to Wibe $74.05, to Anderson $74.65, to McNeil $25.56, and to Brown $28.66, making a total of $229.55. This gives to each a little over seventeen and one third per cent. on the amount of his claim for his money so on deposit in January, 1902. The division thus to be made is in accordance with the principles stated in the former opinion.

By the Court. The judgment of the superior court for Douglas county is hereby modified by reducing the amount of the recovery from the First National Bank to $648.13, and that the same be divided between the parties equitably entitled, as indicated in the former opinion and as stated in this opinion, and that, as so modified, the judgment is affirmed, with costs in this court in favor of the appellant.

TAYLOR, Appellant, vs. DONAHOE, imp., Respondent.

May 2-October 3, 1905.

Crops: Ownership: Landlord and tenant: Cropper: Garnishment: Liability of garnishee of cropper: Chattel mortgages.

1. The distinction between a tenant and a cropper is that a tenant has an estate in land for a given time and a right of property in the crops, and hence makes the division thereof between himself and the landlord in case of an agreement upon shares, while a cropper has no estate in the land nor ownership of the crops, but is merely a servant, and receives his share of the crops from the landlord, in whom the title is.

2. Whether a party occupies the position of tenant or cropper is always a question of construction of the agreement under which he is acting.

VOL. 125-33

Taylor v. Donahoe, 125 Wis. 513.

3. An agreement under which crops were raised nowhere referred to F., who put in the crops, as a tenant, but specifically referred to his work as "service," and expressly provided that D., the owner of the soil, should pay him for his service by certain shares of the crops; that the possession of the land and ownership of the crops were to remain in D., and that F. was merely to be an employee in tilling the land and caring for stock. Held, that F. was a cropper.

4. In such case the fact that F. was to put some stock on the place and furnish certain seed and tools, and was given the right to use certain rooms in the house, did not change the relation between the parties, in the face of the definite and certain clauses of the agreement, and such agreement is not necessarily inconsistent with the fact that F. was a cropper.

5. In such case the garnishee of F., to whom he had delivered a portion of the crops, cannot be held liable, since he neither had possession of any property belonging to F. nor was he indebted to him.

6. In such case a chattel mortgage, given by the cropper before division of the crops, would not make the cropper owner of any part of the crops.

KERWIN, J., dissents.

APPEAL from a judgment of the municipal court of Rock county: CHARLES L. FIFIELD, Judge. Affirmed.

This is a garnishee action. The plaintiff, Taylor, sued Thomas Finnegan in justice court, and garnished one E. M. Calkins. Taylor recovered judgment in the main action for $138, damages and costs. The garnishee, Calkins, answered to the effect that in March, 1903, he purchased from Donahoe a crop of tobacco for the agreed price of $753.74, which was delivered to him by the defendant Finnegan; that he had paid one half thereof to Donahoe, and had in his hands the remaining half, $376.87, and that one Patrick Cullen claimed to own a part of said fund and Donahoe the residue; and he brought the $376.87 into court and demanded that Cullen and Donahoe be interpleaded. Thereupon Cullen and Donahoe were interpleaded in the garnishee action, and trial was had in justice court and judgment rendered finding that Cullen was entitled to $157.96 of the fund, the plaintiff was entitled to

Taylor v. Donahoe, 125 Wis. 513.

$138, and Donahoe the balance, $80.91. Donahoe appealed to the municipal court of Rock county from that part of the judgment awarding any part of the fund to the plaintiff. Upon the trial in the municipal court, without a jury, it appeared that about the 1st day of April, 1900, the respondent, Donahoe, and the said Thomas Finnegan made a written. agreement for the cultivation of certain lands owned or controlled by Donahoe in Rock county, which agreement provided, among other things, that Finnegan was to cultivate the lands and do all the work of raising crops and caring for stock and marketing products, his "term of service" to begin on April 5, 1900; also to furnish, besides his services, certain specified stock to be kept upon the farm, and seeds to be used, to repair fences and buildings, feed and care for all stock, and do all work in a good and husbandlike manner, to the satisfaction of Donahoe. The agreement further contained numerous stipulations with regard to the sharing of expenses between Donahoe and Finnegan, and also provided that Donahoe should pay to Finnegan, "in full compensation for his services" under the agreement, one third of all corn, oats, hay, and apples, one half of all potatoes and tobacco, one third of the increase in live stock by breeding, and the produce of the dairy, which Finnegan agreed to accept in full payment for the raising of the crop, caring for the stock, and for all things furnished by him under the agreement. It was also provided that if Finnegan failed to perform the services fully, required of him by the agreement, in the judgment of Donahoe, he (Donahoe) might hire the work necessary to be done and deduct the expense thereof from Finnegan's share of the crops. It was further provided:

"The possession of the said premises and the title to said crops until the same are divided shall be and remain in said first party [Donahoe]; the said second parties shall be merely employed as his employees in cultivating said land and caring for said stock."

Taylor v. Donahoe, 125 Wis. 513.

Donahoe was also to have the right to select the ground upon which the various crops were to be raised. The agreement was expressly characterized as a personal agreement, and it was provided that Finnegan was to have the use of the dwelling-house upon the lands, except certain parts which Donahoe reserved for his own use. It further appeared that Finnegan entered and occupied the farm under this agreement and raised a crop of tobacco thereon; that Donahoe did not reside on the farm during the term, and that the agreement was never recorded; that, after the crop of tobacco was raised, Finnegan gave to Cullen, with Donahoe's consent, a chattel mortgage upon an undivided one half of the crop of tobacco, which was duly recorded; that the plaintiff, Taylor, afterwards received from Finnegan a chattel mortgage upon the crop of tobacco to secure an antecedent debt, and that before taking his mortgage he saw Cullen's mortgage on file; that afterwards Donahoe sold the whole crop to the garnishee, Calkins, as his own, and that he had not at that time divided the crop; and that the tobacco was hauled to Calkins's warehouse by Thomas Finnegan. Upon these facts the municipal court concluded that the entire sum paid into court was the money of Donahoe, and that Calkins was not indebted to Finnegan in any sum. The court thereupon rendered judgment dismissing the garnishee proceeding, with costs, and Taylor appeals.

For the appellant the cause was submitted on the brief of Ruger & Ruger.

Edward H. Ryan, for the respondent.

The following opinion was filed June 23, 1905:

WINSLOW, J. Really the only question in the case is whether Donahoe or Finnegan owned the crop of tobacco sold to Calkins, and this question is answered when it is determined whether Finnegan was a tenant or cropper. If a tenant, he owned the crop; if a cropper, Donahoe owned it