PIPES, J.
The principal questions here arise upon the ruling of the court below overruling defendant’s demurrer to the complaint and sustaining plaintiff’s demurrer to the answer. Some other questions are presented in the brief, arising on the trial, which will be noted in the opinion.
At the outset we remark that the emblements involved here belonged to respondent up to the time this action was begun. Section 2546, Or. L., provides that:
“When the leasing or occupation is for the purpose of farming or agriculture, the tenant, or person in possession shall, after the termination of such lease or occupancy, have free access to the premises to cultivate and harvest, or gather any crop or produce of the soil planted or sown by him before the service of notice to quit.”
This lease was before this court on a former appeal [Hostetler v. Eccles, 98 Or. 355 (194 Pac. 166)], where [579]*579the lease and statute were construed. It was held that:
“ * * where the termination of the lease depends upon an uncertain event, as, for instance, a demand made at the discretion of the landlord, the tenant would have free access to the premises to cultivate and harvest the crop sown by him before the service of the notice to quit. That is this plaintiff’s remedy in case of a demand made between June 1st and November 1st following.” Hostetler v. Eccles, 98 Or. 360 (194 Pac. 168).
That has become the law of the case: Powell v. D. S. & G. R. R. Co., 14 Or. 22 (12 Pac. 83); William Hanley Co. v. Combs, 60 Or. 609 (119 Pac. 333).
Besides, we are satisfied with the holding. It is supported by the following authorities among many others: Evans v. Watkins, 76 N. H. 433 (83 Atl. 915, 41 L. R. A. (N. S.) 404, and note); Brown v. Thurston, 56 Me. 126 (96 Am. Dec. 438); Carmine v. Bowen, 104 Md. 198 (64 Atl. 932, 9 Ann. Cas. 1135); Harris v. Frink, 49 N. Y. 24 (10 Am. Rep. 318); Reeder v. Sayre, 70 N. Y. 180 (26 Am. Rep. 567); Bittinger v. Baker, 29 Pa. St. 66 (70 Am. Dec. 154); Sievers v. Brown, 34 Or. 454 (56 Pac. 171, 45 L. R. A. 642).
It follows that respondent may maintain this action for damages for the conversion of his property unless for some reason his action is barred.
It is contended by the appellant that, as the complaint shows that respondent refused to deliver up the premises November 1, 1917, as the lease required him to do, he is not in position to complain of the alleged subsequent breach by defendant. This contention goes upon the rule that a party to a contract cannot recover damages for the nonperformance of the same by the other party, when he is himself in default in the performance of the condi[580]*580tions imposed by such contract. This contention assumes that the present action is for a breach by the appellant of the contract of lease. It is true that the lease provides that “the lessee shall be entitled to remain in possession until the November 1st following and to remove the crop.” But the right to “remove the crop” does not depend upon that clause of the lease. It exists by virtue of the statute above quoted, which is itself declaratory of an ancient judicial rule. This clause in the lease adds nothing to, nor would its omission detract from, the right to remove the crop.
“ * * The right to the emblements which would otherwise exist in the lessee, as the duration of his estate depended upon the will of the lessor, does not appear to be controlled or affected by the special contract of the parties. * * ” Stewart v. Doughty, 9 Johns. (N. Y.) 108, 110.
And this court held, on the former appeal, that the right of access to the premises for the purpose of cultivating and harvesting the crop is derived from the statute: Hostetler v. Eccles, supra. We are bound by that holding. The action, therefore, is for the breach of a legal duty imposed upon the appellant by the statute, to accord to the respondent free access to the premises for the purpose of cultivating and saving his crop, and for the damages which are the consequence of such refusal. The action is for a tort.
Nor does the precedent breach of the contract by respondent stand in the way of this action for the tort. That breach has been fully compensated. The remedy for it provided by law has been applied in the judgment awarding restitution of the premises wrongfully withheld in violation of the contract, and for costs. The statute concerning forcible entry and [581]*581detainer actions prescribes the issue and form of judgment. The issue is the right of possession, and the judgment provided when in favor of the plaintiff is “for restitution of the premises and the costs and disbursements of the action.” Sections 2535 et seq., 2539, Or. L.
Such a judgment, when executed, must be held to be a complete remedy for the wrong done. In the judgment here pleaded the complaint alleged the ownership of the real property in the defendant here; the existence of the lease; the possession of defendant under it; a demand for the possession, accompanied by the tender of $200 required by the terms of the lease, and the refusal to surrender. The answer in that case admitted the lease, the possession under it, the tender, and the refusal to vacate. The judgment was for restitution and costs and disbursements. This judgment was executed, and the wrong done fully remedied. The breach, so remedied, cannot have the further penal consequence of barring the plaintiff’s remedy for a subsequent tortious conversion of his property. The demurrer to the complaint was properly overruled.
It is next contended that the judgment in the forcible entry and detainer action is res adjudicata of the issues in this case, and bars the present action. It is urged that the respondent should have pleaded his right of access to the premises for the purpose of saving his crop, and, not having done so, he is barred by the judgment against him in that case. That argument assumes that the judgment was against him on that particular issue. But it was not so. It was against him only on the issue there tried, which was the landlord’s right of possession after he had given notice to quit under the terms of the lease. Now the right of possession is not the [582]*582same thing as the right of access to take off the crop. The two rights coexist; the one in the landlord, the other in the tenant. Indeed, the judicial rule and the statute contemplate that the tenant is out of possession and the landlord is in possession when the former exercises his right of access. The latter right does not extend to the possession of the land. A tenant is not entitled to remain in possession, to the exclusion of his landlord, to cultivate his crops, as the right to emblements does not give a right to the possession of an estate in the land, but only the privilege of ingress and egress as far as necessary for due attention to the crops: Humphries v. Humphries, 25 N. C. 362.
The judgment pleaded as a bar restored the same possession and in the same sense as that which had been wrongfully withheld. And that possession was not inimical to respondent’s right of ingress and egress to secure the crops that were his property. A surrender of the premises would not have .surrendered his right to go in and take his crops.
Free access — add to your briefcase to read the full text and ask questions with AI
PIPES, J.
The principal questions here arise upon the ruling of the court below overruling defendant’s demurrer to the complaint and sustaining plaintiff’s demurrer to the answer. Some other questions are presented in the brief, arising on the trial, which will be noted in the opinion.
At the outset we remark that the emblements involved here belonged to respondent up to the time this action was begun. Section 2546, Or. L., provides that:
“When the leasing or occupation is for the purpose of farming or agriculture, the tenant, or person in possession shall, after the termination of such lease or occupancy, have free access to the premises to cultivate and harvest, or gather any crop or produce of the soil planted or sown by him before the service of notice to quit.”
This lease was before this court on a former appeal [Hostetler v. Eccles, 98 Or. 355 (194 Pac. 166)], where [579]*579the lease and statute were construed. It was held that:
“ * * where the termination of the lease depends upon an uncertain event, as, for instance, a demand made at the discretion of the landlord, the tenant would have free access to the premises to cultivate and harvest the crop sown by him before the service of the notice to quit. That is this plaintiff’s remedy in case of a demand made between June 1st and November 1st following.” Hostetler v. Eccles, 98 Or. 360 (194 Pac. 168).
That has become the law of the case: Powell v. D. S. & G. R. R. Co., 14 Or. 22 (12 Pac. 83); William Hanley Co. v. Combs, 60 Or. 609 (119 Pac. 333).
Besides, we are satisfied with the holding. It is supported by the following authorities among many others: Evans v. Watkins, 76 N. H. 433 (83 Atl. 915, 41 L. R. A. (N. S.) 404, and note); Brown v. Thurston, 56 Me. 126 (96 Am. Dec. 438); Carmine v. Bowen, 104 Md. 198 (64 Atl. 932, 9 Ann. Cas. 1135); Harris v. Frink, 49 N. Y. 24 (10 Am. Rep. 318); Reeder v. Sayre, 70 N. Y. 180 (26 Am. Rep. 567); Bittinger v. Baker, 29 Pa. St. 66 (70 Am. Dec. 154); Sievers v. Brown, 34 Or. 454 (56 Pac. 171, 45 L. R. A. 642).
It follows that respondent may maintain this action for damages for the conversion of his property unless for some reason his action is barred.
It is contended by the appellant that, as the complaint shows that respondent refused to deliver up the premises November 1, 1917, as the lease required him to do, he is not in position to complain of the alleged subsequent breach by defendant. This contention goes upon the rule that a party to a contract cannot recover damages for the nonperformance of the same by the other party, when he is himself in default in the performance of the condi[580]*580tions imposed by such contract. This contention assumes that the present action is for a breach by the appellant of the contract of lease. It is true that the lease provides that “the lessee shall be entitled to remain in possession until the November 1st following and to remove the crop.” But the right to “remove the crop” does not depend upon that clause of the lease. It exists by virtue of the statute above quoted, which is itself declaratory of an ancient judicial rule. This clause in the lease adds nothing to, nor would its omission detract from, the right to remove the crop.
“ * * The right to the emblements which would otherwise exist in the lessee, as the duration of his estate depended upon the will of the lessor, does not appear to be controlled or affected by the special contract of the parties. * * ” Stewart v. Doughty, 9 Johns. (N. Y.) 108, 110.
And this court held, on the former appeal, that the right of access to the premises for the purpose of cultivating and harvesting the crop is derived from the statute: Hostetler v. Eccles, supra. We are bound by that holding. The action, therefore, is for the breach of a legal duty imposed upon the appellant by the statute, to accord to the respondent free access to the premises for the purpose of cultivating and saving his crop, and for the damages which are the consequence of such refusal. The action is for a tort.
Nor does the precedent breach of the contract by respondent stand in the way of this action for the tort. That breach has been fully compensated. The remedy for it provided by law has been applied in the judgment awarding restitution of the premises wrongfully withheld in violation of the contract, and for costs. The statute concerning forcible entry and [581]*581detainer actions prescribes the issue and form of judgment. The issue is the right of possession, and the judgment provided when in favor of the plaintiff is “for restitution of the premises and the costs and disbursements of the action.” Sections 2535 et seq., 2539, Or. L.
Such a judgment, when executed, must be held to be a complete remedy for the wrong done. In the judgment here pleaded the complaint alleged the ownership of the real property in the defendant here; the existence of the lease; the possession of defendant under it; a demand for the possession, accompanied by the tender of $200 required by the terms of the lease, and the refusal to surrender. The answer in that case admitted the lease, the possession under it, the tender, and the refusal to vacate. The judgment was for restitution and costs and disbursements. This judgment was executed, and the wrong done fully remedied. The breach, so remedied, cannot have the further penal consequence of barring the plaintiff’s remedy for a subsequent tortious conversion of his property. The demurrer to the complaint was properly overruled.
It is next contended that the judgment in the forcible entry and detainer action is res adjudicata of the issues in this case, and bars the present action. It is urged that the respondent should have pleaded his right of access to the premises for the purpose of saving his crop, and, not having done so, he is barred by the judgment against him in that case. That argument assumes that the judgment was against him on that particular issue. But it was not so. It was against him only on the issue there tried, which was the landlord’s right of possession after he had given notice to quit under the terms of the lease. Now the right of possession is not the [582]*582same thing as the right of access to take off the crop. The two rights coexist; the one in the landlord, the other in the tenant. Indeed, the judicial rule and the statute contemplate that the tenant is out of possession and the landlord is in possession when the former exercises his right of access. The latter right does not extend to the possession of the land. A tenant is not entitled to remain in possession, to the exclusion of his landlord, to cultivate his crops, as the right to emblements does not give a right to the possession of an estate in the land, but only the privilege of ingress and egress as far as necessary for due attention to the crops: Humphries v. Humphries, 25 N. C. 362.
The judgment pleaded as a bar restored the same possession and in the same sense as that which had been wrongfully withheld. And that possession was not inimical to respondent’s right of ingress and egress to secure the crops that were his property. A surrender of the premises would not have .surrendered his right to go in and take his crops. “The re-entry by the defendants on the land did not deprive plaintiff of his title to the crop as personalty.” Harris v. Frink, 49 N. Y. 24, 30 (10 Am. Rep. 318, 323); Stewart v. Doughty, supra; Reeder v. Sayre, supra. The judgment of restitution, therefore, does not restore a possession more comprehensive than a surrender would have effected.
Conceding without deciding that the court in the forcible entry and detainer action would have jurisdiction, on proper pleadings, to render a judgment against respondent barring his right of access to the premises, it is sufficient to say that it did not do so. It could not have done so in the state of the pleadings, but it was no dereliction of the respondent that such an issue was not tendered. A defendant [583]*583has met every requirement when he answers the complaint. The complaint did not challenge respondent’s right to go in for his crops. It only contested his right to remain in possession under the terms of the lease. If the appellant had wished to go further and obtain a broader judgment than restitution, he should have tendered the issue. The defendant was not called upon to claim a right which was not challenged by the complaint. The failure, therefore, to plead his right of access in the forcible entry and detainer action is not a bar: Collier v. Cunningham, 2 Ind. App. 254, 262 (28 N. E. 341); Sheetz v. Baker, 38 Ill. App. 349; Keating v. Springer, 146 Ill. 481, 498 (34 N. E. 805, 37 Am. St. Rep. 175, 22 L. R. A. 544); La Follette v. Mitchell, 42 Or. 465, 472 (69 Pac. 916, 95 Am. St. Rep. 780); 56 Cent. L. J. 2. The demurrer to the second defense of the answer was properly sustained.
A question is made in the brief of appellant that the court erred in admitting evidence of the value of the property at harvest time in 1918; the claim being that the conversion was “when the appellant assumed control of the property.” The rule invoked is that the measure of damages in trover is the measure of damages at the time and place of the conversion. The question is made here for the first time. The question of value throughout that phase of the trial was directed to the time the appellant was harvesting the crop in 1918. Objection was made as to the rule of damages in other respects, but none in respect to the time of the conversion. The parties seem to have assumed that the conversion took place at that harvest. The court instructed the jury that the measure of damages was the market value at the time and place of conversion, less the expense of harvesting and maturing the crop. No ruling of [584]*584the court was invoked that the conversion was at an earlier date. In the absence of a ruling below on that question, we are not at liberty to make one here. (See cases cited below.)
The appellant then claims that the refusal of the respondent to vacate is a waiver of his right to take his crops. That question is involved in the views we have already expressed. It was also involved and decided in the former case, where the lease was construed. The court there held that respondent was entitled to the outgoing crops, if he was not barred by the former judgment, and so remanded the cause for him to frame his pleadings to that end, which, in pursuance of the ruling, he has done.
A question is made here that the seed produced in the clover hay had been sowed in 1916, and that to allow a recovery for that hay is error. We find in the bill of exceptions the following question, and answer in the testimony of the plaintiff:
“Q. Just state to this court and jury what seed you planted and how much of the farm you seeded.
“A. I sowed 30 acres of wheat and 7 acres in winter oats, and I had seeded the year before to clover 6½ acres. ’ ’
No objection was made to this evidence, nor any motion to strike it, nor to exclude this hay from the consideration of the jury. There was no ruling of the court in relation thereto, and, of course, no exception appears. We are not permitted to consider the question. The rule is stated in State v. Abrams, 11 Or. 169, 172 (8 Pac. 327, 328), as follows:
“ * * We now lay it down as a rule to which there can be no exceptions, that no objection to proceedings in the court below can be heard in this court [585]*585which is not based on alleged error in judicial action on the part of the lower court. * * ”
See, also, State v. Morris, 83 Or. 429, 436 (163 Pac. 567); Watts v. Spokane, P. & S. Ry. Co., 88 Or. 192, 204 (171 Pac. 901); State v. Pointer, 106 Or. 589, 603 (213 Pac. 621); Garrett v. Johnson, 107 Or. 670, 672 (212 Pac. 110).
Besides, there is no reference to this question in the assignments of error, and that would exclude it from consideration: Powder Valley State Bank v. Hudelson, 74 Or. 191 (144 Pac. 494); Boyer v. Anduiza, 90 Or. 163 (175 Pac. 853).
There being no error, the judgment must he affirmed, and it is so ordered. Affirmed.
McBride, O. J., and Bean and Brown, JJ., concur.