Luck v. Luck

6 A. 142, 113 Pa. 256, 1886 Pa. LEXIS 355

Opinion

Mr. Justice Paxson

delivered the opinion of the Court,

This was an action of assumpsit by one tenant in common against his co-tenant to recover the value of the crops raised by the latter upon the common property; in other words, for the use and occupation of the laud. -I am of opinion that the action will not lie under the facts of this case, in which opinion two of my colleagues concur. Three of them, however, are of a contrary opinion, and as our brother Tkttnkey did not hear the case we are unable to pass upon the first three assignments of error. We all agree, however, in reversing the case upon the twelfth assignment. The defendant’s counsel offered to show the amount of lime the defendant had put upon the land, and that it was necessary to put it on in order to raise the crops. The learned judge excluded this evidence upon the authority of Beatty v. Bordwell, 91 Pa. St., 440. This was error. That case does not rule this. This action was assumpit for the value of the crops. The most that the plaintiff could recover would be the value of the crops after a proper allowance for expenses. The lime, or other fertilizer, put upon the land for the purpose of growing the crop was as much a part of the expenses as was the labor of planting or harvesting it. This is too plain to need elaboration. We notice nothing in the remaining assignments which requires discussion.

Judgment reversed and a venire facias de novo ■ awarded.