Barker, P. J.:
In this action the plaintiff seeks to establish his title to a quantity of wheat grown and prepared for market on his own farm and to regain the possession thereof. The defendant denies the plaintiff’s title and claims to be the owner thereof by virtue of the terms of a written contract between himself and the plaintiff for the working of the. said farm on shares. No other issue than the one of title to the property was litigated on the trial, and all the rulings to which the plaintiff excepted relate to that question. In March, 1885, the pariies made an agreement by the terms of which the defendant was to work on shares the plaintiff’s farm for the term of five years. The wheat in question was a part of the crop which the defendant sowed in 1885 and harvested and prepared for market in the season of 1886, after he had abandoned the possession of the farm in March of that year. The form and 'terms of the agreement are in most respects the same as those usually found in contracts of this character. It is recorded therein that in consideration of the covenants and agreements of the party of the second part, who is the defendant, the party of the'first part, the plaintiff, “ does hereby agree to permit the party of the second part to work the farms of the party of the first part, * * * said permit to continue from the 1st -day of March, 1885, until the 1st day of March, 1890, and the party of the second part does hereby agree to do and perform all the work and labor on said farms during said term necessary to conduct the farming in first-class manner.” Each party was to furnish one-half the seeds and the grain was to be equally divided in the measure. The defendant was to sow at least [144]*144thirty acres of winter wheat each year and to plant and cultivate so much of other crops as the plaintiff might require. Both parties were to reside on the premises in separate houses, the plaintiff to have the privilege of keeping for his own use a certain number of cows and horses to be cared for by the defendant. There were many other stipulations relating to the mode and manner of working the farms which it is unnecessary to mention. The defendant removed from the premises in April, 1886, with the intention not to return and manage and cultivate them for the balance of the term. "When the wheat was ripe, in July, the defendant harvested it and thrashed and cleaned the same on the premises, taking away one-half and leaving the other half for the plaintiff. This action is for the part removed. After the defendant left in the spring, the plaintiff resumed the management of the farms and weeded the wheat of the chess and rye growing therein.
By this agreement the legal relation of landlord and tenant was not created. The parties to the agreement became tenants in common of the grain and the other products of the farm produced by the labor and care of the defendant. (Putnam v. Wise, 1 Hill, 234; Taylor v. Bradley, 39 N. Y., 129; Armstrong v. Bicknell, 2 Lans., 216.) It is now well settled by all the more recent decisions, that the form of the agreement is not controlling in determining whether the relation of landlord and tenant has been created; that it is the substance of the contract which determines its legal character. In the division of property growing crops are classed as personal property, and they may be sold on execution and the title thereto transferred by a parol agreement, and as between the heirs-at-law and the personal representatives of a deceased person, the latter take title. (Whipple v. Foot, 2 Johns., 418; Bank of Lansingburgh v. Crary, 1 Barb., 542; Evans v. Roberts, 5 Barn. &. Cress., 829.)
Under this rule the defendant had a legal title to an undivided half of the growing crop of wheat, unless the same was lost by a nonperformance of the agreement on his part. His share could have been levied upon and sold by his creditors under execution against his property and when the crop matured the purchaser would have been entitled to his share of the wheat. The question arises, what was the legal effect on the defendant’s title by reason of [145]*145bis leaving tbe premises and refusing to perform tbe agreement on bis part ? It was ruled on tbe trial and stated to the jury as a legal proposition, that if tbe defendant quit tbe farm without being induced to do so by reason of some wrongful act of tbe plaintiff-then be could not maintain bis defense, and tbe plaintiff was entitled to tbe verdict. But if they found that tbe defendant abandoned tbe farms by reason of tbe wrongful act of tbe plaintiff, and being without fault himself, then be was entitled to tbe wheat, and their verdict should be in bis favor. Tbe proposition was also expressed and stated to tbe jury in another form, viz., if the condition of things which existed was brought about by tbe plaintiff with a view to deprive the defendant of bis substantial rights, although bis act did not amount in law to an actual eviction, then tbe defendant not being in fault was entitled to their verdict. It is obvious that, by tbe form of expression used by tbe trial judge? reference was intended to be made to same act of tbe plaintiff, which, in tbe law, constituted a breach of bis contract, and not to some tortious action on bis part having no relation to some condition of the agreement either express or implied. Tbe plaintiff contends that tbe case is destitute of any evidence showing any act on his part, which, in tbe law, amounts to a breach of his contract and on tbe trial asked tbe court to so instruct the jury which was refused and an exception taken. In tbe early part of tbe year tbe defendant and tbe plaintiff disagreed as to tbe meaning of some of tbe provisions on tbe contract, but tbe conversations on those subjects were not followed by any action on the part of tbe plaintiff which deprived tbe defendant of any of bis rights or interfered in any way with bis management of tbe farm. They also disagreed as to tbe proper way of preparing tbe ground for tbe planting of crops, and tbe plaintiff expressed bis own opinion on this question by giving to tbe defendant advice bow tbe work should be done. This, surely, could not have harmed tbe defendant although be did not welcome tbe advice. At times their conversation concerning tbe operations on tbe farm was curt and uncivil on tbe part of tbe plaintiff, which, at tbe most, can only be characterized as mere fault finding. This behavior, disconnected wfitb what afterwards occurred, did not justify tbe defendant in abandoning tbe place and refusing to perform [146]*146bis contract. Tbe defendant was to trim and care for tbe hedge .growing on tbe premises. In midsummer tbe plaintiff sent a man to do tbe work on tbe hedge, and tbe defendant forbid bis interfering therewith, saying to tbe plaintiff that it was bis own work and that be intended to do it; and the plaintiff replied that be should insist -on doing tbe work and would make him pay for it, and, as tbe •defendant testified, applied to him a mean and vulgar epithet accompanied with tbe further remark, “ you will get off this farm by next ¡spring; you cannot stay here, I will have you in jail.” Tbe defendant says that be replied to this statement, that there was no need of .resorting to harsh means, as be was willing to leave and did not want ■to stay and quarrel and fight in that way.
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Barker, P. J.:
In this action the plaintiff seeks to establish his title to a quantity of wheat grown and prepared for market on his own farm and to regain the possession thereof. The defendant denies the plaintiff’s title and claims to be the owner thereof by virtue of the terms of a written contract between himself and the plaintiff for the working of the. said farm on shares. No other issue than the one of title to the property was litigated on the trial, and all the rulings to which the plaintiff excepted relate to that question. In March, 1885, the pariies made an agreement by the terms of which the defendant was to work on shares the plaintiff’s farm for the term of five years. The wheat in question was a part of the crop which the defendant sowed in 1885 and harvested and prepared for market in the season of 1886, after he had abandoned the possession of the farm in March of that year. The form and 'terms of the agreement are in most respects the same as those usually found in contracts of this character. It is recorded therein that in consideration of the covenants and agreements of the party of the second part, who is the defendant, the party of the'first part, the plaintiff, “ does hereby agree to permit the party of the second part to work the farms of the party of the first part, * * * said permit to continue from the 1st -day of March, 1885, until the 1st day of March, 1890, and the party of the second part does hereby agree to do and perform all the work and labor on said farms during said term necessary to conduct the farming in first-class manner.” Each party was to furnish one-half the seeds and the grain was to be equally divided in the measure. The defendant was to sow at least [144]*144thirty acres of winter wheat each year and to plant and cultivate so much of other crops as the plaintiff might require. Both parties were to reside on the premises in separate houses, the plaintiff to have the privilege of keeping for his own use a certain number of cows and horses to be cared for by the defendant. There were many other stipulations relating to the mode and manner of working the farms which it is unnecessary to mention. The defendant removed from the premises in April, 1886, with the intention not to return and manage and cultivate them for the balance of the term. "When the wheat was ripe, in July, the defendant harvested it and thrashed and cleaned the same on the premises, taking away one-half and leaving the other half for the plaintiff. This action is for the part removed. After the defendant left in the spring, the plaintiff resumed the management of the farms and weeded the wheat of the chess and rye growing therein.
By this agreement the legal relation of landlord and tenant was not created. The parties to the agreement became tenants in common of the grain and the other products of the farm produced by the labor and care of the defendant. (Putnam v. Wise, 1 Hill, 234; Taylor v. Bradley, 39 N. Y., 129; Armstrong v. Bicknell, 2 Lans., 216.) It is now well settled by all the more recent decisions, that the form of the agreement is not controlling in determining whether the relation of landlord and tenant has been created; that it is the substance of the contract which determines its legal character. In the division of property growing crops are classed as personal property, and they may be sold on execution and the title thereto transferred by a parol agreement, and as between the heirs-at-law and the personal representatives of a deceased person, the latter take title. (Whipple v. Foot, 2 Johns., 418; Bank of Lansingburgh v. Crary, 1 Barb., 542; Evans v. Roberts, 5 Barn. &. Cress., 829.)
Under this rule the defendant had a legal title to an undivided half of the growing crop of wheat, unless the same was lost by a nonperformance of the agreement on his part. His share could have been levied upon and sold by his creditors under execution against his property and when the crop matured the purchaser would have been entitled to his share of the wheat. The question arises, what was the legal effect on the defendant’s title by reason of [145]*145bis leaving tbe premises and refusing to perform tbe agreement on bis part ? It was ruled on tbe trial and stated to the jury as a legal proposition, that if tbe defendant quit tbe farm without being induced to do so by reason of some wrongful act of tbe plaintiff-then be could not maintain bis defense, and tbe plaintiff was entitled to tbe verdict. But if they found that tbe defendant abandoned tbe farms by reason of tbe wrongful act of tbe plaintiff, and being without fault himself, then be was entitled to tbe wheat, and their verdict should be in bis favor. Tbe proposition was also expressed and stated to tbe jury in another form, viz., if the condition of things which existed was brought about by tbe plaintiff with a view to deprive the defendant of bis substantial rights, although bis act did not amount in law to an actual eviction, then tbe defendant not being in fault was entitled to their verdict. It is obvious that, by tbe form of expression used by tbe trial judge? reference was intended to be made to same act of tbe plaintiff, which, in tbe law, constituted a breach of bis contract, and not to some tortious action on bis part having no relation to some condition of the agreement either express or implied. Tbe plaintiff contends that tbe case is destitute of any evidence showing any act on his part, which, in tbe law, amounts to a breach of his contract and on tbe trial asked tbe court to so instruct the jury which was refused and an exception taken. In tbe early part of tbe year tbe defendant and tbe plaintiff disagreed as to tbe meaning of some of tbe provisions on tbe contract, but tbe conversations on those subjects were not followed by any action on the part of tbe plaintiff which deprived tbe defendant of any of bis rights or interfered in any way with bis management of tbe farm. They also disagreed as to tbe proper way of preparing tbe ground for tbe planting of crops, and tbe plaintiff expressed bis own opinion on this question by giving to tbe defendant advice bow tbe work should be done. This, surely, could not have harmed tbe defendant although be did not welcome tbe advice. At times their conversation concerning tbe operations on tbe farm was curt and uncivil on tbe part of tbe plaintiff, which, at tbe most, can only be characterized as mere fault finding. This behavior, disconnected wfitb what afterwards occurred, did not justify tbe defendant in abandoning tbe place and refusing to perform [146]*146bis contract. Tbe defendant was to trim and care for tbe hedge .growing on tbe premises. In midsummer tbe plaintiff sent a man to do tbe work on tbe hedge, and tbe defendant forbid bis interfering therewith, saying to tbe plaintiff that it was bis own work and that be intended to do it; and the plaintiff replied that be should insist -on doing tbe work and would make him pay for it, and, as tbe •defendant testified, applied to him a mean and vulgar epithet accompanied with tbe further remark, “ you will get off this farm by next ¡spring; you cannot stay here, I will have you in jail.” Tbe defendant says that be replied to this statement, that there was no need of .resorting to harsh means, as be was willing to leave and did not want ■to stay and quarrel and fight in that way. In tbe fall they bad .another disagreement about tbe manner of fastening up tbe granary door, and each used harsh language, and tbe defendant swears that tbe plaintiff then said, “ there is no use talking, I want you to get ■off this farm by tbe first of April; I will lock you up before a month; I will have you in jail; you shall not be here.” In December another •altercation took place over a trifling matter and tbe plaintiff again ■said to tbe defendant “ I want you to leave, and I will show you out into tbe road before tbe first of. March.” All this evidence tbe plaintiff denied and according to bis version of their difficulties tbe defendant provoked tbe plaintiff to utter the threats in which be indulged.
A ssuiniug, as we must, in disposing ■the exception, that tbe defendant’s story is true, we are to determine whether this behavior on tbe part of tbe plaintiff constituted a breach of tbe agreement on bis part. It did not violate any express •term of tbe agreement, nor did it amount to an expulsion of tbe •defendant from tbe premises, and tbe court so charged tbe jury. If, however, it can be fairly said that tbe language of tbe plaintiff bad tbe effect to deprive tbe defendant of tbe full and beneficial ■enjoyment of the premises as stipulated in tbe contract, then such conduct constitutes a breach of an implied condition of tbe contract .and amounts to a justification for tbe action of tbe defendant in removing from tbe premises. Tbe language used by tbe plaintiff was provoking and insulting in its character, and its natural operation and effect was to deprive tbe defendant of tbe privilege secured to him by tbe contract of having a quiet and peaceful home on tbe [147]*147premises, free from the annoyance and disturbance of the plaintiff. ¥e are of the opinion that the conduct and behavior of the plaintiff was such as to constitute a breach of the contract on his part, and justified the defendant in removing from the premises, and that the judgment should be affirmed.
The court instructed the jury, at the request of the plaintiff, that, if they should find that the agreement between the parties under which the defendant worked the farm was rescinded by mutual consent, and there being no reservation by either party of any rights under the contract, the defendant would have no right to enter the premises thereafter to gather the crops therefrom. These instructions, in which both parties concurred, are based on the proposition, that where both parties consent that the contract be dissolved the rights of each under the same are ended. (Graves v. White, 87 N. Y., 463.)
The plaintiff asked the court to charge the jury that if the plaintiff, by his conduct, justified the defendant in treating the contract as broken, and for that reason the defendant abandoned the premises and ceased to work the farm, then he could have no right of action thereafter to the growing crop, but his redress, if any he had, would be for damages for a breach of the contract by the plaintiff. This was rejected and the plaintiff excepted. There was mo error in this refusal, for the reason that the plaintiff, by his action, justified the defendant in treating the contract as broken on the part of the plaintiff, and he could refuse a further, performance on his part and abandon the premises without abandoning the contract. As the contract remained in force so far as the defendant was concerned, he could maintain an action thereon for the damages he suffered by reason of the plaintiff’s breach of the'same. But we are unable to appreciate the argument that the defendant lost his title to the growing crops by abandoning the premises, which he was justified in doing by reason of the plaintiff’s non-performance of the agreement. The growing crop of wheat was personal property, in which the defendant had the title to the undivided one-half. The wheat in its growing state was one of the products of the farm, produced by the labor of the defendant in pursuance of the terms of the agreement. Iiis interest in the same was his reward for his labor. The defendant was guilty of no wrong, as he performed [148]*148tbe agreement on his part and was willing to go on with tbe same, imtil defeated by tbe plaintiff’s own action, and tbe latter is in no position to claim that the defendant bad forfeited bis title to this or any other item of property which had a tangible existence when he abandoned the premises. Suppose the defendent had remained on tbe premises until tbe crop had matured and was ready to be harvested, and then the plaintiff bad wrongfully interfered and prevented the defendant from harvesting the wheat, can it be justly said that tbe defendant’s title was lost and thereby forfeited to tbe plaintiff? If the plaintiff had thrashed and prepared the wheat for market, we think the defendant’s title would have been perfect to an undivided share of the same, and on a demand and refusal be could have maintained an action as for a conversion of the same. It is undoubtedly true that the defendant could have altogether abandoned bis interest in tbe growing crop and maintained an action upon the contract for damages, and tbe value of his interest in the same could have been recovered as damages for a breach of tbe contract. If tbe defendant had abandoned tbe premises without justification, the privity between tbe plaintiff and the defendant, based upon the contract, would have been destroyed, and as a legal consequence the defendant would have lost all title and interest in tbe growing crop. (Graves v. White, 81 N. Y., 463; Kiplinger v. Green, 28 N. W. R., 121.)
Whenever a term created by a lease is terminated by tbe wrongful act of the tenant himself, he is not entitled to the emblements. (Blackstone’s Com., vol. 2, p. 145; 4 Kent’s Com., 72; Samson v. Rose, 65 N. Y., 411; Taylor’s Landlord and Tenant, § 543.)
We have reached the conclusion that the judgment should be affirmed.
All concurred.
Judgment and order affirmed.