[No. 9135.

Department Two.

July 14, 1911.]

#### M. P. Fuhrman *et al., Respondents,*v. Interior Warehouse Company, *Appellant.*
      *1*

Landlord and Tenant-—Cropping on Shares—Tenancy in Common. A tenancy in common in a crop is created by a lease of land to be cropped under a contract for a specific division of the crop.

Tenancy in Common—Actions—Parties—Joinder. Tenants in common in a' prospective crop have a joint right of action for damages through fraud in the sale of seed to one of the tenants.

Damages—Measure of Damages—-Fraud — Loss of Crop. The measure of damages for.the loss of a prospective crop through fraud in the sale of seed is the market value of such crop as plaintiff would have raised if the'seed had been as represented, less the cost of producing or harvesting not incurred, and léss the value, if any, of such crop as was raised from the seed sold; but where the plaintiff had not paid for the seed, the sum due therefor should also be deducted.

Appeal from a judgment of the superior court for Klickitat county, McMaster, J., entered April 5, 1910, upon the verdict of a jury rendered in favor of the plaintiifs for $630, in an action for damages.

Reversed, unless $87.84 is remitted.

*160
      *F. D. Chamberlain*and *E.*C. *Ward,*for appellant.

*W. B. Presby,*for respondents.

Reported in 116 Pac. 666.

Crow, J.

Action for damages by M. P. Fuhrman and Frank L. Huston against the Interior Warehouse Company, a corporation. The complaint, in substance, alleges, that the plaintiff Frank L. Huston, being the owner of tillable land in Klickitat county, granted its possession to his co-plaintiff, M. P. Fuhrman, under a lease, by the terms of which Fuhrman agreed to pay Huston a rental of one-third of any and all crops grown thereon during the year 1909; that Fuhrman, with the intention of growing a crop of wheat hay, thoroughly plowed, cultivated, and prepared the land, and applied to defendant, Interior Warehouse Company, to purchase blue-stem wheat with which to seed the land; that he notified the defendant he wanted blue-stem wheat for seed; that defendant, so knowing his wants, needs, and purposes, sold him a variety of winter wheat known as “forty-fold,” which Fuhrman used in seeding, believing it to be blue-stem; that Fuhrman seeded the land in March and April, 1909; that forty-fold wheat is not adapted to, but is worthless for, spring sowing; that it will sprout, but will not mature or produce a crop; and that the plaintiffs, without fault on their part, lost their entire crop, to their damage in the sum of $1,050. To this complaint, a demurrer was overruled, and the defendant answered. On trial the jury, in compliance with instructions of the trial court, divided the damages in the proportion of two-thirds and one-third, and returned a verdict in favor of Fuhrman for $420, and in favor of Huston for $210. The defendant has appealed from the final judgment entered thereon.

The demurrer was special and general, its grounds being, (1) a defect of parties plaintiff; (2) improper joinder of several causes of action; and (3) insuificient facts pleaded to state a cause of action. Appellant first assigns error on the order overruling the demurrer, and in substance contends *161that, as respondent Huston was the landlord of respondent Fuhrman, the alleged sale of wheat, if made to either, was made to the latter only; that no privity of contract exists between Huston and appellant; that Huston has no separate cause of action against appellant; that he and Fuhrman have no joint or common cause of action against appellant; and that they are improperly joined as parties plaintiff. The allegations of the complaint show Fuhrman was tilling the land upon an agreement to yield to Huston a specified portion of the crop raised. This made the respondents tenants in common in the crop. The weight of authority is that every contract, whereby use of land is given to a party to cultivate and return to the owner a specified portion of the crop produced, creates a tenancy in common in the crop, and that this is true whether the agreement between the parties is a lease or a mere cropping contract. The tendency of the courts is to hold that, whenever there is' a provision in any form of contract for a specific division of crops produced, a tenancy in common arises therein. Freeman, Cotenancy and Partition (2d ed.), § 100; *Foote v. Colvin,*3 Johns. 216, 3 Am. Dec. 478; *Putnam v. Wise,*1 Hill 234, 37 Am. Dec. 309 ; *Aiken v. Smith,*21 Vt. 172; *Smyth v. Tankersley,*20 Ala. 212, 56 Am. Dec. 193; *Dinehart v. Wilson,*15 Barb. 595; *Abernethy v. Uhlman,*52 Ore. 359, 93 Pac. 936, 97 Pac. 540.

In *Smyth v. Tankersley, supra,*the court said:

> “In the case of *Thompson v. Mawhinney, supra,*it was decided by this court that a contract made with the owner of land, which the other party agreed to cultivate and to divide the products equally with him, was not, technically speaking, a lease, but that a tenancy in common was created in the products. In the contract under consideration, the mode of compensation adopted repels the conclusion that it could have been the intention of the parties that the land should not be cultivated, and thus assimilates its terms more closely to the contract in the case last cited. ■ It is true, the phraseology adopted is that which is usual in leases, but the substance of the agreement is to be regarded, rather than the words: *162
>       *Putnam v. Wise, supra;*and in contracts of this description, the true test seems to be, that wherever provision is made for dividing the specific products of the land, a tenancy in common results: *Putnam v. Wise, supra,*and authorities there cited.”

Although the appellant sold the seed wheat to Fuhrman only, the sale was for the benefit of Huston as well. He was interested in the prospective crop. A sale of seed wheat unfit for use damaged him as directly and positively as it did Fuhrman. It caused him to lose the one-third which he was to receive for the use of his land, as completely as it caused Fuhrman to lose his two-thirds. In *Foote v. Colvin, supra,*it was held that the owner of land, and his lessee cultivating it on shares, have joint property in the crops and may jointly maintain an action against a third person who wrongfully cuts and removes them. If Huston and Fuhrman were both injured as the direct result of appellant’s act in selling the latter seed wheat unfit for use, they, as tenants in common in the crop, have a joint cause of action against appellant for their damages sustained. The demurrer was properly overruled.

Appellant contends its motion for a nonsuit should have been granted. We have carefully examined the evidence and find that, although conflicting, it was sufficient to sustain the verdict of the jury on the issues of fact submitted, and that the nonsuit was properly denied.

The evidence introduced was sufficient to show that, for the joint benefit of Huston and himself, the respondent Fuhrman properly plowed, cultivated, and prepared the land for seeding; that he purchased the wheat, which he understood and appellant represented to be blue-stem, suitable for spring sowing; that Fuhrman used it to seed the land; that the crop did not mature sufficiently to justify the expense of harvesting ; that it was not harvested for that reason, and that it was a total loss. It also appeared that the respondent Fuhrman had not paid appellant for the seed wheat purchased and used *163by him. On the measure of damages the trial court instructed the jury as follows:

> “If you find from the evidence and a preponderance thereof, that plaintiff is entitled to recover from defendant, you will allow him such sum not exceeding $1,050 as is equal to the market value of such crop as plaintiff would have raised upon his land if the wheat had been as represented by the defendant, less the cost of harvesting such crop and less the value, if any', of such crop as was raised that season upon the land planted with the seed alleged to have been sold to plaintiff by defendant.”

Appellant contends this instruction was erroneous in that it stated an improper measure of damages. In *Shotwell v. Dodge, 8*Wash. 337, 36 Pac. 254, this court held the proper measure of damages for a lost crop to be its market value less the cost of producing, harvesting and marketing the same. Here the respondent Fuhrman had incurred and paid all expense of cultivating, seeding, and producing a crop, aside from the cost of the seed wheat used, but he incurred no expense of harvesting. Expense or cost of producing the crop actually incurred by respondent Fuhrman should not be deducted from its market value, but such expense of producing and harvesting as he had not incurred should be deducted. The value of a probable crop upon the land was shown, and no expense of marketing should be deducted. The instruction was erroneous in that it failed to instruct the jury to deduct the cost of the seed wheat used which respondent Fuhrman had purchased from appellant anfi for which he had not made payment. Appellant claimed the seed wheat was not sold to Fuhrman, but to his mother. The jury, however, found the sale was made to the respondent, and the evidence sustains this finding. Appellant, in a communication made to Mrs. Fuhrman, claimed sales of the wheat in dispute were made for a total price of $87.84, the highest value mentioned in the evidence. It is apparent that the only possible prejudicial effect of the instruction given and above quoted was to increase the damages to that extent.

*164Other objections are predicated upon rulings of the court on the evidence, and on' instructions given or refused. We, however, find the record free from prejudicial error, except as above stated, and consider that we have discussed all controlling questions of law or fact arising on this appeal. As the only possible effect of the erroneous instruction above mentioned, prejudicial to the appellant, would be to increase the damages awarded to the extent of $87.84, a new trial should not be granted, except at .respondent’s election. It is ordered that, if within twenty days after remittitur, the respondents file with the clerk of the superior court notice of their election to remit $87.84 of the damages awarded, the judgment as thus modified be affirmed, and that otherwise a new trial be granted. The appellant will recover its costs in this court.

Dunbar, C. J., Morris, and Chadwick, JJ., concur.