It appears from the record here that the defendant Mayer entered into a written contract with one Pond, which is as follows: —

‘‘Articles of agreement entered into this eighteenth of October, 1889, between J. H. Pond and Rudolph Mayer. I, J. H. Pond, party of the first part, hereby agrUe to furnish to R. Mayer 140 acres of land, more or less> to sow in wheat the coming season; in consideration j shall receive one fifth (1-5) of the crop, delivered in P'aso Robles, clear of all expenses pertaining thereto. I. Rfidolph Mayer, party of the second part, agree to plow and put in wheat the above-mentioned land, in good farmer-like style, and in due time for the season of 1889 ¡md 1890, to furnish seed, and all expenses appertaining thereto.

RoncJ} the admitted owner of this land when the above contract was made, sold it to the plaintiff, Shaw, by proper conveyance, in February, 1890. Shaw also at that dat-e obtained from Pond an assignment of the agreement between the latter and defendant. Mayer only sowed in wheat nineteen acres of the land included in the contract, and upon ninety-five acres of it there grew a volunteer crop of that grain.

Before any of the crops were harvested, the plaintiff notified the defendant not to cut any of the volunteer crop of grain. But this notice was disregarded, and the defendant harvested and thrashed all of the grain,— that sowed by him, and the volunteer crop as well. In tfie aggregate, there were 372 sacks of wheat and 21 sacks of "^creenin|gs„ It appears that the volunteer crop was *303 about the same per acre as the sown crop. The plaintiff brought an action of claim and delivery for the 372 sacks of wheat and the screenings. The jury who tried the case found, under the instructions of the court, that he was the owner and entitled to recover 250 sacks of wheat and six sacks of screenings, and that they were of the value of $250. In pursuance of the statute in such cases, an alternative judgment for plaintiff following the verdict was entered. From that, and an order denying a new trial, this appeal is taken.

The argument for appellant is, that the contract was a lease of 140 acres of land, and that the defendant was entitled to his share of all that grew on the whole tract, whether sowed in wheat or not, and that, being a tenant in common with the plaintiff, the latter could not maintain this action. And because the court below refused to grant a nonsuit on the motion of the defendant, and gave instructions to the jury not in accord with the theory of the defendant, it is claimed that the judgment and order should be reversed, and a new trial granted.

The whole question involved is one, we think, to be determined from the language of the written contract between Pond and Mayer. As we construe that instrument, whether it be called a lease or a cropping contract, the defendant has no right in any of the land, except that which he sowed in wheat. As to the land which he did not sow, he was not entitled to anything which grew upon or was harvested therefrom. The whole idea pervading the contract is, that as to so much of the 140 acres as the defendant sowed in wheat, he was to have a certain fixed portion of the crop grown thereon, and the owner of the land, who furnished it to be sown in wheat, the balance. As to the other - part of the land, not sown in wheat by the defendant, he had no interest in it or what grew upon it. Having harvested, thrashed, and taken into his possession the wheat that voluntarily grew on the land of the plaintiff, the defendant was liable in the action brought against him, and the recovery had against him should be upheld.

*304 We therefore advise that the judgment and order be be affirmed.

Belcher, C., and Temple, C., concurred.

For the reasons given in the foregoing opinion, the judgment and order appealed from are affirmed.

Garoutte, J., Harrison, J., Paterson, J.