Shaw

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,…