#### August Brandt & Company, Appellant, vs. Verhagen and others, Respondents.

*April 14*

May 4, *1915.*

*Lease of farm, animals: Increase: To whom belongs: Evidence: Oral testimony contradicting ivriting: ~Weight: Striking out unresponsive statement.*

1. Where farm animals are leased for a season without reservation the increase belongs to the lessee.

2. Where a written lease for a season of live stock on a farm contained no reservation of the increase, evidence of an oral agreement that the increase should belong to the lessor was not admissible.

3. Testimony of the lessor in this case is *held,*even if it had been proper, not to be sufficient to establish anything inconsistent with the legal effect of an unconditional written lease of live stock.

4. Refusal to strike out such testimony, which was not responsive to any question asked, was error.

Appeal from a judgment of tbe circuit court for Outa-gamie county: JohN GoodlaND, Circuit Judge.

*Reversed.*

Defendant *Lochery*leased to Cornelius Van Laarboven a farm and some live stock thereon with the right to purchase the same. No reservation was made of the increase of the stock. There was such increase. The lessee mortgaged the same as his own. *Lochery*commenced an action against his lessee and attached the property. Then the mortgagee commenced an action of replevin against the officer who had possession of the property under the writ of attachment. *Lock-ery*was brought in as a defendant. Issue was duly joined. The main question litigated was whether the increase of the leased property belonged to the lessee at the time he gave the mortgage. If so plaintiff was entitled to recover. Evidence was permitted to the effect that the lessee verbally agreed not to sell any of the increase of the leased property; that it should be considered reserved to the lessor. A verdict was *4rendered sustaining *Lockery’s*claim and judgment followed accordingly against the plaintiff.

Tbe cause was submitted for tbe appellant on tbe brief of *Francis 8. Bradford*and *Albert II.*Krugmeier, and for tbe respondents on that of *Francis J. Rooney*and *Francis W. Grogan.*

Marshall, J.

Tbe evidence that tbe understanding was that tbe lessor should be tbe owner of tbe increase from tbe leased stock, clearly contradicted tbe written contract and was improperly admitted. Furthermore, it was not responsive to any question asked and should have been stricken out on appellant’s motion which was made therefor. To tbe question: “Did you ever agree with Van Laarhoven as to having tbe right to mortgage, sell, or convey any of tbe stock on tbe farm ?” *Loclcery*was permitted, in tbe face of proper objections, to testify: “I forbid him to sell or mortgage. That was tbe understanding that be was not to dispose of any of tbe increase of tbe stock. That was to remain my property and not disposed of.” To permit that to stand, notwithstanding a proper motion which was made to strike it out, certainly was wrong and prejudicially so, since it appertained to a vital point in tbe case and, particularly, because Van Laar-hoven was not available as a witness.

Had tbe evidence which was improperly admitted been proper, still it seems tbe court should not have taken it as sufficient to warrant taking tbe case from tbe jury in favor of respondents. By itself, it is far from satisfactory. In tbe face of tbe circumstance that *Loclcery*caused tbe property to be seized in bis civil action and held as property of Van Laarhoven, it is not of sufficient weight to establish anything inconsistent with tbe legal effect of tbe unexplained unconditional lease of tbe live stock.

Tbe foregoing is so plain we are inclined to think tbe learned trial court was of tbe opinion that tbe increase belonged *5to the lessor, in the absence of some agreement to the contrary. That is not the law. It is as claimed, by appellant. A lease of live stock, as in this case, without reservation, carries with it the whole use thereof, including an increase of number of animals. That is a general rule to be applied in all cases of an unconditional lease for a season of farm animals. If a lessor does not wish to be bound by it he must protect himself by the terms of his contract. That rule is a very old one though probably seldom used. It is stated upon ample authority, and principle as well, in Law of the Earm by Thompson, § 349, cited to our attention by counsel for appellant. In *Moore v.*Mohney, 1 Mich. N. P. 143, cited by the authority and-found often cited elsewhere, the court stated as the settled law: “Where animals are left for hire their increase belongs to the person who hires them,” unless it be otherwise agreed upon between the parties when the contract is made. That manifestly does not apply to casual hiring but to letting for a term so that an increase would naturally be expected in the ordinary course of things as such animals are customarily kept.

*By the Gourt.*— The judgment is reversed, and the cause remanded for judgment in favor of plaintiff.