560, 19 L.R.A. (N.S.) 938, 98 Pac. 138; Sayers v. Missouri P. R. Co. 82 Kan. 123, 27 L.R.A. (N.S.) 168, 107 Pac. 641. Messrs. Russell & Reese, for defendants in error: Where the entire performance of a contract has been prevented by one of the parties, the other party has his election to sue on the contract for its breach and recover such damages as arose out of the breach, or to treat the contract as rescind and at an end and bring his action for the reasonable value of his services rendered under the contract prior to the breach. Damages - breach of cropping contract. For other cases, see Damages, III. a, 3, in E (December 3, 1917.) 9 Cyc. 688; Hoagland v. Moore, 2 Blackf. 167; Dibol v. Minott, 9 Iowa, 403; Bassett v. Sanborn, 9 Cush. 58; Canada v. Canada, 6 Cush. 15; Hill v. Green, 4 Pick 114; Hemminger v. Western Assur. Co. 95 Mich. 355, 54 N. W. 949; Mooney v. York Iron Co 82 Mich. 263, 46 N. W. 376; Omaha Consol. Vinegar Co. v. Burns, 49 Neb. 229, 68 N. W. 492; Caldwell v. Myers, 2 S. D. 506, 51 RROR to the District Court for La Plata County to review a judgment in favor of plaintiffs in an action brought to recover the value of services performed by them for. W. 210; Hall v. Gunter, 157 Ala. 375, defendants under a cropping contract. Reversed. The facts are stated in the opinion. Messrs. James A. Pulliam and Perkins & Main, for plaintiffs in error: The true rule in estimating the damages is the value of the lessees' interest in the lease, which is measured by the value of his interest in the crop when matured and harvested, less the expense necessarily in curred in carrying the crop to maturity and harvest, from the time of the eviction. Wells v. National Life Asso. 53 L.R.A. 64, 39 C. C. A. 476, 99 Fed. 222; Wright v. Everett, 87 Iowa, 697, 55 N. W. 5; Taylor v. Cooper, 104 Mich. 72, 62 N. W. 157; Bowers v. Graves & V. Co. 8 S. D. 385, 66 N. W. 933; Isabella Gold Min. Co. v. Glenn, 37 Colo. 165, 86 Pac. 349; Waggoner v. Moore, 45 Tex. Civ. App. 308, 101 S. W. 1058; Springer v. Riley, Tex. Civ. App. 136 S. W. 577; Somers v. Musolf, 86 Ark. 97, 109 S. W. 1174; Devers v. May, 124 Ky. 387, 99 S. W. 257; Rogers v. McGuffey, Tex. Civ. App. -, 75 S. W. 817; Milheim v. Baxter, 46 Colo. 155, 133 Am. St. Rep. 50, 103 Pac. 376; McClure v. Thorpe, 68 Mich. 33, 35 N. W. 829; 24 Cyc. 1468,3; Rockwell Stock & Land Co. v. Castroni, 6 Colo. App. 521, 42 Pac. 180; Roberts v. Lehl, 27 Colo. App. 351. 149 Pac. 852; Colorado Consol. Land & Water Co. v. Hartman, 5 Colo. App. 150, 38 Pac. 62; Teller v. Bay & River Dredging Co. 151 Cal. 209, 12 L.R.A. (N.S.) 267, 90 Pac. 942, 12 Ann. Cas. 779; Smith v. Hicks, 14 N. M. 47 So. 155; Poland v. Thomaston Face & Ornamental Brick Co. 100 Me. 133, 60 Atl. 795; Miller v. Mantik, 116 Md. 279, 81 Atl. 797; Walker v. Lundstrom, 132 Mo. App. 367, 112 S. W. 1; Matson v. Stewart, Tex. Civ. App. 124 S. W. 736; Meyer v. Frenkil, 116 Md. 411, 82 Atl. 208, Ann. Cas. 1913C, 875; Wellston Coal Co. v. Franklin Paper Co. 57 Ohio St. 182, 48 N. E. 888; Cody v. Raynaud, 1 Colo. 272; McGonigle Snowden v. Clemons, 5 Colo. App. 251, 38 v. Klein, 6 Colo. App. 306, 40 Pac. 465; Pac. 475; Baylies, Code Pl. 2d ed. p. 182; 2 Enc. Pl. & Pr. p. 1010: Norton v. McLombard v. Overland Ditch & Reservoir Co. Allister, 22 Colo. App. 293, 123 Pac. 963; 41 Colo. 253, 92 Pac. 696; Cochran v. Balfe, 12 Colo. App. 75, 54 Pac. 399; Barnum v. Green, 13 Colo. App. 254, 57 Pac. 757; Jones & L. Steel Co. v. Abner Doble Co. 162 Cal. 497, 123 Pac. 290; Cook v. Gallitan R. Co. 28 Mont. 509, 73 Pac. 131; French v. Cunningham, 149 Ind. 632, 49 N. E. 797; Kearns v. Burling, 14 Ind. App. 143, 42 N. E. 646: Spaulding v. Coeur D'Alene R. & Nav. Co. 5 Idaho, 528, 51 Pac. 408; Beck v. Schmidt, 13 Cal. App. 448, 110 Pac. 455; Carlson v. Sheehan, 157 Cal. 692, 109 Pac. 29; Boyd v. Bargagliotti, 12 Cal. App. 228, 108: Adams v. Pugh, 7 Cal. 150; Walker v. 107 Pac. 150; Reynolds v. Jourdan, 6 Cal. Price, 163 Cal. 617, 126 Pac. 482; Jenson v. Lee, 67 Kan. 539, 73 Pac. 72; Keyser v. Rehberg, 16 Mont. 331, 41 Pac. 74; United States v. Behan, 110 U. S. 338, 28 L. ed. 168, 4 Sup. Ct. Rep. 81; Breen v. Roy, 8 Cal. App. 475, 97 Pac. 170; Guerdon v. Corbett, 87 Ill. 272; Sanger v. Chicago, 65 Ill. 506; Angle v. Hanna, 22 Ill. 429, 74 Am. Dec. 161; Webster v. Enfield, 10 Ill. 298; garded as a general denial. Defendants also filed a cross complaint concerning matters which are not involved in any assignment of error. Upon trial, the jury found the issues for the plaintiffs. Thereafter judgment was entered in favor of plaintiffs, and the defendants bring error. Thompson v. Gaffey, 52 Neb. 317, 72 N. W. The defendants filed an answer which, 314; Moulton v. Trask, 9 Met. 577; Parker | for the purposes of this review, may be rev. McComber, 17 R. I. 674, 16 L.R.A. 858, 24 Atl. 464; Chamberlin v. Scott, 33 Vt. 80; Bare v. Victoria Coal & Coke Co. 73 W. Va. 632, 80 S. E. 941; McCullough v. Baker, 47 Mo. 401; Derby v. Johnson, 21 Vt. 17; San Francisco Bridge Co. v. Dumbarton Land & Improv. Co. 119 Cal. 272, 51 Pac. 335; Porter v. Arrowhead Reservoir Co. 100 Cal. 500, 35 Pac. 146; Cox v. MeLaughlin, 76 Cal. 60, 9 Am. St. Rep. 164, 18 Pac. 100; George O. Richardson Machinery Co. v. Swartzel, 70 Kan. 773, 79 Pac. 660; McFarland v. Welch, 48 Mont. 196, 136 Pac. 394. Allen, J., delivered the opinion of the court: It appears from the pleadings and the evidence in this case that on or about February 10, 1914, the defendants below, who owned a tract of land, entered into an oral contract with plaintiffs below, with reference to carrying on farming on the land. By the terms of the agreement the defendants were to furnish the grain necessary to seed the ground and machinery; the plaintiffs were to do the work of farming, including the irrigation of the land, and were to receive one half of everything that was raised, and the defendant A. L. Pace was to show the plaintiffs "about irrigating," and how and where to do the work pertain ing to the cultivation and raising of the crops. On September 1, 1914, the plaintiffs below brought this action against the defendants below. The complaint briefly mentions the contract above referred to, and then alleges, in substance, that, pursuant to the agreement, the plaintiffs worked on the land, each of them about five months, having worked almost continuously until and including the 9th day of July, 1914. The complaint further alleges, in effect, that the contract was wrongfully terminated by the defendants on July 9, 1914, and plaintiffs were no longer permitted to work thereunder or to have any further control over the crops raised or to be raised under the contract; that certain planting was done by the plaintiffs and that the defendants have received the benefit thereof; that plaintiffs worked and irrigated about 30 acres of timothy hay, and that the reasonable value of the services performed by plaintiffs for defendants under the contract is $780, which the defendants have never paid plaintiffs, save and except a certain sum in cash and a certain amount of groceries. The prayer is for the recovery of the value of the services mentioned, less the items received from defendants. At the trial, which was to a jury, the plaintiffs introduced evidence tending to prove the contract above mentioned; that the contract had been performed in part by the plaintiffs, and that its further performance had been prevented by the act of the defendants. On cross-examination a witness for the plaintiffs testified that plaintiffs "never had any understanding with either Mr. or Mrs. Pace that they should be paid by the day, and the only understanding and agreement was that they should get their pay out of the crop that was raised on the place." Over the objections of the defendants the plaintiff's testified that the customary and prevailing wage for men doing work as plaintiffs did, in that vicinity, during that period of time, was $1.50 a day and board, or $2 a day and board yourself." The admission of this evidence, that the usual and customary wages paid for labor was $2 per day, is assigned as error. The plaintiffs, defendants in error here, contend that since they have performed, in part, a specific agreement, and further performance has been prevented by the act of the defendants, they, the plaintiffs, are eutitled to recover of and from the defendants what the former's services were reasonably worth, measured by the prevailing rate of wages paid for similar work. If the contract between plaintiffs and defendants was one of employment, or if, by reason of the contract, the plaintiffs were servants of the defendants, the theory upon which the case was conducted and the rule now contended for by the plaintiffs would be correct. We cannot, however, regard the contract as one of employment. The parties were not, among themselves, masters and servants. The contract was one for the cultivation of land for a share of the crops. There is much diversity in the decisions of the courts as to the nature of such contracts and the measure of damages for breach of the same. In so far as the intention of the parties is concerned, the record in this case is unfavorable to the conclusion that the parties regarded the contract as one of employment. In the complaint the plaintiffs refer to the contract as a "lease," and "agreement of lease," and that they worked "under the terms of said lease." T. B. Beckett, one of the plaintiffs, testified that the land of the Paces was "leased." In diversity in the decisions of the courts as considering the authorities, it seems that the most satisfactory view of such contracts as the one in question is that they are special, partaking somewhat of the nature of an adventure, entitling the party to a chance in the profits or benefits derivable therefrom. This view more nearly carries out the intention of the parties than any other. Such appears to be the nature of the contract between the parties that is the subject of this controversy. It was not a contract of employment. The plaintiffs were not servants of the defendants, either before or after the breach of the agreement by defendants. Reasons for this conclusion can be found in the case of Bowers v. Graves & V. Co. 8 S. D. 385, 66 N. W. 931, from which we quote extensively later in this opinion. Other authorities in support of this view are: Taylor v. Bradley, 39 N. Y. 129, 100 Am. Dec. 415; James v. James, 151 Wis. 78, 137 N. W. 1094; and Cull v. San Francisco & F. Land Co. 124 Cal. 591, 57 Pac. 456. The defendants in error, plaintiffs below, in their brief say: "Under the decisions, as we read them, this was what is termed a 'cropping contract,' rather than a lease." Assuming that this statement is correct, it is not sufficient to support plaintiffs' theory that they could recover as for work and labor and that the evidence as to the prevailing rate of wages was admissible. The syllabus in 124 Cal. 591, in the case of Cull v. San Francisco & F. Land Co. supra, reads as follows: "A contract for the cropping of land upon shares does not include any element of a contract of employment; and there being no original employment by the terms of the contract, the cropper does not become a servant or employee by the breach thereof on the part of the owner of the land, and he cannot, on account of such breach, maintain an action upon a quantum meruit for the value of his services." In the case of Bowers v. Graves & V. Co. supra, the same contention was made by a cropper, and the same relief sought, as that by the plaintiffs in the instant case, except that in the Bowers Case the compensation claimed was a certain sum per acre. The farming or cropping contract involved in that case was very similar to the one in the case at bar, under the terms of which each party was to receive a share of the crops raised. The case was brought on the same theory as that on which the plaintiffs here have proceeded. The supreme court of South Dakota in the case just mentioned, among other things, said: "The contract in this case belongs to that class of contracts for the cultivation of lands for a share of the crop that has given rise to much "The to their nature and the measure of dam- He [the cropper] is subject to no direction of the defendant, other than to sow and plant said land in such crops as the defendant should direct. He is not subject to the orders, nor under the control, of the defendant, in the performance of his labors. He is in fact, his own master, and master of such help as he might employ. His services are not to be paid for by any definite or fixed standard, but depend entirely upon the nature and value of the crop. If the season is a favorable one, his remuneration may be large; if unfavorable, his crop may be light, and his remunera tion or profits small, and the remuneration of the owner of the land for its use is subject to the same contingencies. In entering into the contract, therefore, the plaintiff must be presumed to have taken into consideration all these circumstances, and elected to make the venture, and take the chances of success or failure. But the plaintiff cannot claim that, by reason of the breach, the relations of the parties to each other have been changed. If the plaintiff was not a servant or employee of the defendant under the terms of the contract, he does not become such by the breach thereof. The defendant had neither directly nor indirectly assumed the payment for any such services, as such." The court, in Bowers v. Graves & V. Co. supra, overruled the plaintiff's contention hereinbefore mentioned. In the case of Rockwell Stock & Land Co. v. Castroni, 6 Colo. App. 521, 42 Pac. 180, the plaintiff was prevented by defendant from carrying out a partnership agreement to raise hens, chickens, and eggs for market, after plaintiff had spent about three months' time in acting under the agreement. The plaintiff in that case brought an action to recover, among other items, $100 for one hundred days' lost time at $1 a day. As in the case at bar, and also as in the Bowers Case in South Dakota, the remuneration of the plaintiff under the contract in the Castroni Case depended on the profits of the enterprise, and the services were "not to be paid for by any definite or fixed standard," and the defendant had not assumed the payment for such services, as such. In the Castroni Case the plaintiff at the trial was permitted, over the objections of the defendant, to offer evidence in regard to the item of $100 for one hundred days' time lost. The Colorado court of appeals, in reversing the case, said: "The chief trouble is the case was not correctly conceived and it was tried on a wholly erroneous hypothesis. When the company refused to put the agreement in writing or to carry it [the agreement] out, it was guilty of a breach of contract for which it must respond in damages. The damages, however, do not take the form of the per diem value of the labor of the person against whom the wrong was committed. The court clearly erred in ad mitting proof concerning the value of her time for one hundred days." The opinion in the case of Smart v. Burquoin, 51 Wash. 274, 98 Pac. 666, indieates that the court there took a view similar to that entertained by the court in the case of Bowers v. Graves & V. Co. supra. The court said: "In this case the pleadings show that appellants seek to recover upon a quantum meruit the value of their plowing, while holding under a lease with the rent reserved in kind, with no promise or obligation whatever upon the respondent to pay in money for any work done in tilling the land. If they (the appellants) were evict ed, they have mistaken their remedy." The claim of the plaintiffs in the case at bar for a per diem compensation for their services is quite analogous to that of the plaintiff in the case of Rockwell Stock & Land Co. v. Castroni, supra; and, as said in that case, "the court erred in admitting testimony concerning what should constitute the measure of damages." In all the cases cited herein and in the case at bar there was no agreement to pay in money for any work done under the contract. As in the case of Smart v. Burquoin, supra, the plaintiffs "have mistaken their remedy,” and as in the Castroni Case, the plaintiffs proceeded "on a wholly erroneous hypothesis." Under the principles laid down in the authorities quoted, it was error for the trial court to overrule defendants' objec tions to the admission of testimony concerning the prevailing rate of wages for men doing the work which plaintiff did under the contract in question, and the value of plaintiffs' services measured by such per diem rate. It is not necessary to consider other as signments of error. The defendants in error, tions to the record on error. in their answer brief, raise some objec These objections are made for the first time in the answer brief, and after plaintiffs in error had prepared and filed their abstract of record and their brief. Under these circumstances the objections must be deemed to have been made too late. Lavelle v. Julesburg, 49 Colo. 302, 112 Pac. 774. For the reasons hereinbefore stated, the judgment is reversed and the cause remanded for further proceedings not inconsistent with the views herein expressed. Annotation-Measure of damages for breach of cropping contract. Many of the earlier cases which fall | 713, on the measure of damages for within the scope of the general question forcing cropper from premises, and are under consideration in the present anno- not repeated herein. The two notes tation have been treated in the annota- should be read together, as each suppletion to Crews v. Cortez, 38 L.R.A. (N.S.)ments the other in part. Generally as to loss of profits as an ele- | effect of the ruling in Smart v. Burquoin ment of damages for breach of contract, (1908) 51 Wash. 274, 98 Pac. 666. But see extensive note to Wells v. National Life Asso. 53 L.R.A. 33; as to tenant's or cropper's abandonment of crop as affecting rights and interests therein, see annotation to Salley v. Cox, 46 L.R.A. (N.S.) 53, and as to right of tenant or cropper to maintain replevin for crops, see annotation to De Spain v. Coley, L.R.A.1917C, 1111. or on a see Lindley v. Dempsey (1873) 45 Ind. 246, wherein it was held that, in the absence of allegations of special damages in an action for breach by the landowner of a cropping contract, only general damages such as the law implies or presumes to have accrued from the wrong complained of can be recovered, and that such damages consist of the value of the In construing contracts for the culti- work actually done in part performance vating of land for a share of the crops, of the contract. And see Williams v. mere cropping contract, so Bemis (1871) 108 Mass. 91, 11 Am. Rep. called, it is impossible to lay down a 318, wherein plaintiff had an agreement general rule applicable to all cases for to cultivate land for two years for a the reason that the precise nature of the share of the crops, and during the first relationship between the parties depends year incurred much expense and perupon the contract itself, very slight vari- formed considerable labor in preparaations in terminology often very mate- tion for an increased productiveness in rially affecting the legal relations and the second year, but the landowner tertheir consequent remedies and recoveries.minated the contract at the end of the Broadly speaking, the relationship under first year, and refused to let the cropper cropping contracts is generally regarded cultivate for the second year, and whereas either that of master and servant, landlord and tenant, or of parties to a joint adventure. The measure of damages for breach of a contract of the character under consideration is largely controlled by the nature of the legal relation of the parties, but in some cases such relation is not regarded as impor-lity, tant; and in other cases the nature of the legal relation can only be determined by inference. In all cases where the nature of the relation has been determined and has seemingly been regarded as of importance in determining the proper measure of damages, it has been indicated in connection with the treatment of the cases. in it was held that the cropper could recover for the work done and materials furnished. But the court, in reaching this conclusion, evidently proceeded upon the theory that the contract was invalid under the Statute of Frauds, so that the cropper could treat it as a nul and, the consideration having failed, could recover the payment made by him in service and materials. (In this connection, see note to Fabian v. Wasatch Orchard Co. L.R.A.1916D, 895, on "Right to quantum meruit for services rendered under parol contract unenforceable because not to be performed within a year;" and note to Cook v. Griffith, L.R.A.1916D, 468, on "Right of vendee to recover back payments made upon a contract for the sale of land Supplementing note in 38 L.R.A. which does not satisfy the Statute of (N.S.) 714. . Breach by landowner. At least where the contract is not regarded as one of employment, the measure of damages for a breach thereof by the landowner generally is not measured by the value of the services which have been performed by the cropper under the contract. This was the rule laid down in PACE V. BECKETT, ante, 1053, where the landowner was to furnish the land, seed, and machinery, and the cropper was to cultivate the land for one half the crop. And the same was held in Cull v. San Francisco & F. Land Co. (1898) 124 Cal. 591, 57 Pac. 456, the headnote of which is quoted in the PACE CASE, and in which the landowner was merely to furnish the land and the cropper was to receive one half of the crop. And, as was stated in PACE V. BECKETT, the same was the Frauds.") A considerable number of courts have laid down the rule that the measure of damages for breach of a cropping contract is the value of the lease or contract. Thus, in Jenkins v. Womach (1910) 143 Mo. App. 410, 128 S. W. 530, where plaintiff was to occupy and tend defendant's farm on shares, but was dispossessed before the completion of the term, it was held that the plaintiff's measure of damages for the breach of the contract, which was regarded as establishing the legal relation of landlord and tenant, was the market value of the premises over and above the amount of rent to be paid the landowner; and that, in case the property had no market value, the reasonable value should be substituted for market value, but not |