Adams

This action was brought in replevin to recover one hundred and eighty-six and three-fourths sacks of dried apricots or their value in case a delivery could not be had, together with damages for their detention. When plaintiff rested, a motion for nonsuit was made and the court granted the motion "solely for the reason that the court feels bound by the decision of the Appellate Court for the Third District rendered on the prior appeal in this cause, to hold that plaintiff and defendant are tenants in common of the property described in the complaint, and that this court should grant a nonsuit on such grounds." In the decision by this court on the former appeal it was held that "While the agreement set out and under which the parties were operating is called therein a lease, yet under *Page 457 the authority of Bernal v. Hovious, 17 Cal. 542 , [ 79 Am. Dec. 147 ], it must be deemed only a cropping contract, and the parties are cotenants in the fruits raised during the time of the contract, and each has an equal right with the other to the possession of the whole of said fruit, and, under the general rule, neither can maintain a suit against the other for the possession of the…

Respondent's petition for a rehearing seems to proceed upon the theory that the affirmative defense set up in the answer was established at the trial. The truth is that plaintiff was the only witness examined and his evidence tended to prove the allegations of the complaint and not any allegation of the answer inconsistent therewith. Upon the trial of all the issues in the case it may be that defendant will be entitled to judgment, but we still think that the motion for a nonsuit was improperly granted. We are not inclined to the view that we should not consider the contention that the law of the case is not applicable because the point was not raised in the opening brief. We see no reason why we should not consider it, though it was made, not in anticipation of defendant's argument but in answer thereto. The petition for a rehearing is denied. Hart, J., and Chipman, P. J., concurred. A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on June 24, 1907. *Page 462