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Driver vs. Maxwell.

his privilege under the old rule of law, when he himself had to make repairs. He was bound for such repairs only as were requisite to maintain the status quo; in some cases, perhaps, not for that much.

3. If these views are correct, their application to the present case is not difficult. The contract of renting was made with the tenant by an agent of the landlord. It was for one year, 1873, and the landlord's compensation was to be onethird of the corn and one-fourth of the cotton raised on the premises. It is not shown to have been in writing—the presumption is it was in parol. The agent of the landlord testifies that the fence was in very bad condition, insufficient to turn and keep off ordinary stock from destroying the crop; that plaintiff and defendant both knew it at the time of the renting, and that nothing was said as to who should put the fence in condition to protect the crop. The tenant testifies that nothing was said as to who was to put the fence in condition to protect the crop; that all the parties knew the fence was no account, and would not turn any kind of stock; and that in many places a man could step over it with ease. In relation to the crop made, its value, and what became of it, the agent testifies, that the corn raised was something like one hundred and thirty or one hundred and forty or one hundred and fifty bushels, worth $1 00 per bushel ; and the cotton something like three or four bales; that good cotton was worth some thirteen cents per pound, but this was very poor, because the tenant and his hands, being sick in the fall, did not gather the crops till late, and the storms and the stock injured them very much. The tenant testifies that he raised about four bales of cotton, and about one hundred bushels of corn; that about forty bushels of the corn was destroyed by hogs and cattle; that the cattle destroyed all the cotton except two bales, of four hundred pounds each; that the cotton was rather poor, on account of bad weather and the cattle running over it before it was gathered; and that he sold it for eleven cents per pound, which was the best price he could get. He testifies further, that

Driver vs. Maxwell.


the rent corn and cotton were to be delivered on the premises; that he put up the rent corn, thirty-three bushels, in a crib, as agreed, and that he tendered to plaintiff's agent onefourth of the cotton, in the seed, which the agent declined to receive, requiring it to be ginned, baled and delivered in Americus. It does not appear what finally became of the corn put up as rent. The presumption is that the cotton tendered in the seed was afterwards ginned, and formed a part of the two bales sold.

On the facts in evidence there was no legal obligation upon either party to make the fence better. Both knew of its condition, and neither stipulated to make repairs or to be chargeable with them. The crop was at the mutual risk of the parties, to the extent of such interest as each had in its vation. Whatever was lost by reason of the bad fence was as if it had not been produced. Neither party was bound to make the loss good to the other. There is no evidence that the fence deteriorated or became in a worse condition than when the parties contracted. Its then insufficiency continued, and there is no evidence of any fault or default on the part of either landlord or tenant. Both parties risked the fence just as they did the soil and the seasons. What the ground would produce and the fence secure they were to divide; what the weather or the cattle destroyed was gone beyond recovery and gave no right to compensation.

The court's charge to the jury was erroneous in so far as it departed from this theory of the law; and inasmuch as the verdict could have been for less than it was, consistently with the evidence, if a correct charge had been given, the judgment is reversed and a new trial granted.

Judgment reversed.

WARNER, Chief Justice, concurred, but furnished no written opinion.

JACKSON, Judge, dissenting.

Tomlinson, as agent for Maxwell, rented certain lands to Driver. At the time of the contract the fences were defective

Driver vs. Maxwell.

and both parties knew it. There was no stipulation that they should be made better, and none devolving the duty to repair upon either. The rent agreed upon, with a full knowledge of the condition of the fence, was one-third of corn and onefourth of the cotton made on the place.

The plaintiff proved that from one hundred and thirty to one hundred and fifty bushels of corn and three or four bales of cotton were raised on the place; that corn was worth one dollar per bushel and cotton thirteen cents per pound. This proof was by Tomlinson, who had no interest in the case.

The defendant proved by himself that he raised on the place four bales of cotton and one hundred bushels of corn ; that about forty bushels of corn was destroyed by the hogs and cows; that the cattle destroyed all the cotton except two light bales weighing four hundred pounds each ; that on account of bad weather and the cattle running over the cotton before it was gathered, it was rather poor, and he had sold both bales at eleven cents per pound; that defendant measured plaintiff his full portion of corn due according to said contract and put it in a crib to itself, and also cotton fully onefourth, and put it to itself; that the corn actually measured and cribbed for plaintiff, was thirty-three bushels; that storms came, and the place was very sickly and the weather bad, and hogs and cattle trespassed on the crop and prevented its proper gathering. The court charged the jury and they found for plaintiff $99 50.

I think that the jury found right. I have doubt that they believed the defendant's story. I doubt that they ought to have believed it. At one breath he swore that the cattle destroyed all the cotton except two light bales, exactly four hundred pounds each, and these he carried to Americns and got eleven cents a pound for. In the next breath be swore that he put the landlord's part of the cotton, fully one-fourth, he swears, to itself, and kept it for him. At one breath he swears that he made one hundred bushels of corn, and the cattle eat up forty bushels of it. At the next, that he cribbed exactly thirty-three bushels for the landlord. His whole de

Driver vs. Maxwell.

fense is that he was blockhead enough to rent a piece of land so poorly fenced that when he rented it he knew it would not turn cattle or even hogs; and yet when cattle and hogs were depredating upon it, though he thought it was the landlord's duty to repair and keep them out, he suffered the crop to be destroyed rather than notify him or his agent.

I repeat that I cannot find it in my heart to condemn the jury for the verdict they rendered. It seems to have been moderate; it was only $99 50. The proof fully authorized it, and I think it should stand, though the court may have erred upon questions of law, as this court has ruled so often that if I undertook to enumerate the cases it would spin this opinion into a yarn unendurably long. Especially, when no motion is made for a new trial, should this oft-repeated rule be adhered to, and still more should it prevail in a case where no human being—10 neighbor, no son, no employee-witnessed the destruction wrought upon this man's crops by the storm and the sickness, the hogs and the cattle, except himself! And when even he, who can pack two light bales of cotton with so much accuracy that neither of them shall weigh more than just exactly four hundred pounds, cannot or does not tell the jury how much of the crop was destroyed by each of these calamities-sickness, storms and cattle! It would require wonderful skill in ciphering to determine from the premises given by his testimony exactly how much corn and how much cotton each of these causes of ill luck produced, unless, indeed, it be the law that the landlord shall warrant not only a good fence but no sickness and no storms. How any jury could cipher out an approximation to a proper deduction to be made from the landlord's rent from these cattle, damage feasant, all mixed with the sickness and storm in uncertain proportions, I cannot imagine, and if it be demanded that they shall apportion such damage between landlord and tenant, the beginning would surpass the skill of Kepler or Sir Isaac Newton. I shrink from putting such a task upon a jury, and for this reason I dissent from the judgment of the court.

Driver vs. Maxwell,

But has any substantial error been committed by the court below? Let us see.

Two errors are assigned : first, his refusal to charge as requested ; secondly, the charge given. He was requested to charge as follows: "That in making the contract of rental between plaintiff and defendant, if nothing was said about necessary repairs, and who should keep the premises in suitable repair for cropping in said year 1873, for which said contract was made, the plaintiff should have kept said premises in repair, and if the crops, or a portion of the same, was destroyed by cows and hogs, for want of proper repairs done on the fence around said premises, that plaintiff could not recover if the amount destroyed was equal to what his portion of the crops would have been."

This request would announce the law, that the landlord, without notice, must see to it that the fence around the place he rents is good and kept good all the year. I do not understand that my brethren hold this extreme view. If pronounced law, it would unsettle all the ideas the profession entertain of it, and would plunge the relation of landlord and tenant into as much confusion and difficulty as a jury would encounter in settling the contest for supremacy between storm and sickness and cattle, without any data being furnished to show which did the most damage. The landlord may live a hundred miles off. It makes no difference. He must move in the neighborhood of the place he rents, or hire somebody to go around it all the year, every week or two. It has always been thought heretofore to be the duty of the cropper to take care of his crop, and as the easiest way of doing it to go round bis fence occasionally and mend the rails which break or rot, and put up the fence if storms have blown it down or hunters have left it down.

But the second error alleged against the court below is the charge he did give. What is that? It is “that if defendant rented land from plaintiff with a bad fence around the premises at the time of renting, and a large portion of the crop was destroyed by hogs and cows by reason of said defective fence, yet defendant was liable to pay full rent for the prem

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