majority">

The opinion of the court was delivered by

Elmer, J.

We think the state of demand sufficiently *296explicit. Technical accuracy of pleading is not required iu a justice’s court. It is sufficient if the demand contains in itself a legal cause of action, apprises the defendant of the complaint against him, and so states the case that it may afterwards appear what was decided. There is an express averment that the plaintiff well and truly performed all and. singular the covenants and agreements in the agreement mentioned on his part to be done and performed. It is also averred that, on a day named at the expiration of the agreement, there was due to him, and he was entitled to have and receive certain specified quantities of grain, &c., of certain specified values, and that the said defendant, although on the said day requested, refused to allow him to take and receive the same, but kept and detained the same from him.

As 'to the counterpart, the plaintiff was not obliged to prove it. There was no proof that there was a counterpart. An action of covenant may be brought on a deed-poll as well as on an indenture ; and in many cases a party is liable to the action, who has not himself sealed the instrument. Finley v. Simpson, 2 Zab. 321. Where there is a counterpart, ordinarily the execution of the agreement is not meant to be complete until both are signed, sealed and delivered ; but in this case the state of the case sets forth that the agreement sealed by Patten was proved, which was prima fade sufficient. If the defendant wished to show that he sealed and delivered it only on condition that the plaintiff sealed and delivered the counterpart, and that in fact it was not his deed, he should have introduced the proof. The most formal declaration makes proferí only of the covenant sealed by the defendant, and this only is to be proved.

A more important objection, and the one most relied on for a reversal of the judgment, was that covenant could not be brought upon the agreement in question. The argument for the plaintiff in certiorari was, that if the agreement did not create a partnership between the par*297ties respecting the farm, it made them tenants in common of the produce, and that the only action that can bo sustained between tenants in common for a division of the profits is the action of account. We are not satisfied, however, that the agreement was intended to make the parties either partners or tenants in common. It is vague and obscure of itself. The surrounding circumstances in regard to the operations of the previous year, the occupancy of the premises by the respective parties, and the manner of keeping, using, and disposing of the crops, which were proved oil the trial, and which may have materially aided the courts in ascertaining the true meaning of the instrument, are not before ns. We ought, therefore, to make every reasonable intendment in support of the judgment. The relation of landlord and tenant does not appear to have existed, nor does it seem that Heustis was intended to have any property in or possession of the crops. He was apparently the mere servant of Patten, to be paid for specified services and materials, by having delivered to him, or being permitted to take, one-half the crops, This involved no tenancy in common on division of profits. It was held in the case of Perrine v. Hankinson, 6 Halst 181, that where, by an agreement, the plaintiff was to receive from the defendant a portion of the profits of a farm and tavern by way of rent, he might sue in assmipsit for his share. In the ease before us the complaint is, that although plaintiff performed the services and furnished the materials on his part, for which he was entitled to receive and take a certain specified quantity and value of crops produced, the defendant refused to allow him to take, and kept and detained the same from him. This being proved, as we must presume it was, entitled the plaintiff to damages for a breach of the covenant.

The judgment must be affirmed.

Citation profile

How this case has been treated — in progress