Thornton

This is an action to recover the balance alleged to be due plaintiff upon a contract which it made with defendant to harvest sixteen hundred acres of grain. It is conceded that tif the amount which would be due plaintiff for the harvesting, according to the contract price, $645.04 remains unpaid; but defendant set up a counterclaim of $13,320 for damages alleged to have been suffered by him on account of the failure of the plaintiff to perform the con tract, and prayed judgment for that amount against plaintiff. The jury found for the defendant in the sum of $1,500, for which amount judgment was rendered for him against plaintiff ; and the latter appeals from the judgment and from an order denying its motion for a new trial.

Appellant contends that respondent was the owner of only the undivided two thirds of the grain, and that Eppinger & Co. owned the other undivided third; and that, therefore, respondent could not counterclaim damages accruing to him and Eppinger & Co., and, at most, could only recover his proportionate share thereof; hut these contentions cannot be maintained. Eppinger & Co. were the owners in fee of the land on which the grain was raised; but the instrument…