Page:North Dakota Reports (vol. 48).pdf/122

 v. Barnhouse, 29 L.R.A. (N. S.) 166; Black on Recision and Cancellation, Vol. 2, § 497 on essentials of a gift.

, J. Plaintiff brought this action to recover the value of 200 tons of straw which he avers that the defendant set on fire, and caused to be destroyed, on October 9, 1919. The defendant interposed a general denial. The case was tried to a jury, and resulted in a verdict in favor of the plaintiff for $480 and interest. The defendant moved for a new trial on the grounds, among others: (1) Insufficiency to justify the verdict; (2) that the verdict is against law; and (3) that the verdict was rendered under the influence of passion and prejudice, and excessive damages awarded to the plaintiff. The motion for a new trial was granted, and plaintiff appealed.

The defendant was the owner of a quarter section of land in Renville county in this state. In April, 1919, the plaintiff and the defendant entered into a written contract whereby the plaintiff agreed to farm such land for the farming season of 1919 on the “crop-share plan.” The land was sowed to wheat which was threshed in August, 1919, and this controversy arises over the straw. The plaintiff claims to be the owner of all of the straw. Under the contract between the parties, the plaintiff specifically agreed “not to remove any straw or manure from said farm, and not to sell or remove, or suffer to be sold or removed, any of the produce of said farm or premises, of any kind, character, or description until the division thereof, without the written consent of the party of the second part, and, that, until such division, the title and possession of all the hay, grain, crops and produce, raised, grown or produced on said premises” should be and remain in the defendant. The contract further provided that all the hay should be put up “one-half basis,” and that—

“In consideration of the faithful and diligent performance of the foregoing stipulations by the party of the first part (plaintiff) the party of the second part (defendant) agrees, upon reasonable request thereafter made, to give, release and deliver to said party of the first part herein named the one-half of the hay and of all grain so raised and secured from the said farm during said season or seasons, or the proceeds thereof, if sold, after deducting from such share any just costs or disbursements, incurred and made by said party of the second part as hereinbefore provided and any indebtedness owing from the first party to the second party.”