It is undisputed that at the time of the threshing some conversation took place between plaintiff and defendant with reference to the straw. The plaintiff claims that the defendant told him that he could have all of the straw if he removed it from the premises “before the snow came.” The defendant, on the other hand, claims that in such conversation he told the plaintiff that he (plaintiff) could have the straw, or as much thereof as he wanted, if he took it off the premises before the 1st of October. The defendant further stated that he informed the plaintiff that he wanted to burn the straw before he went back to his home in Canada. The defendant further testified that he also informed the plaintiff that he had given other parties permission to take some of the straw. On the gth day of October, the defendant burned the straw. The plaintiff thereupon brought this action to recover $4,000, which he claims to be the value of the straw.
In a memorandum decision filed with the order granting a new trial, the trial court said:
“It is contended by the plaintiff that under the provisions of this lease, he would have a half interest in the straw, from the mere fact that he was tenant. The defendant claims that the crops raised, being emblements, are the property of the tenant. The respective rights of the parties, however, and the question of title to crops and straw, are fixed by his contract. An examination of the contract shows that at no time did the tenant, the plaintiff, have any interest in the straw. While the crops were growing, all the title thereto remained in the defendant, and even after division, all title that passed to the plaintiff upon the completion of the contract was title to ‘the one-half of hay and of all grain raised and secured from the said farm during said season.’ The straw is neither hay nor grain, and therefore it is clear that at all the time the title to the straw remained in the defendant. Despite this new theory advanced by the plaintiff, that because he is the tenant the annual crops are the property of the tenant until division, it is clear he did not have that view when he commenced the action. He brings this action against the defendant because he claims the defendant destroyed certain property which he gave to the plaintiff. In other words, the plaintiff claims the defendant made a gift of the straw to him. * * * There is no contention in the evidence that the plaintiff removed any of the straw, or had commenced hauling it before the defendant burned it. The threshing was done some time in August, and it was during the threshing
