80 So. 633 | Miss. | 1918
delivered the opinion of the court..
O. H. Kennedy and J. L. McLendon in January, 1916, leased a certain tract of land from J. E. Bradbury for a period of five years and entered into possession of said lease. At the time .of the lease it was understood that Kennedy and McLendon would furnish
In the fall of the year following the execution of the lease Kennedy sold certain cotton grown upon the place and deposited the proceeds in a hank at G-unnison, Miss. His partner, McLendon, notified the bank from which the loan was obtained of this transaction by Kennedy, and requested the bank to take steps to recover the property sold, or its proceeds, to be applied on the deed of trust given the bank. The cashier of the hank notified Mr. Bradbury and told Mr. Bradbury that the hank was looking to Bradbury for the payment of these sums, and requested Bradbury to take
The chancellor in his decree found there was an overcharge of one hundred and ninety-five dollars and ninety ’cents on corn, and that there were only three hundred and fifty bushels at sixty cents per bushel, with six per cent, interest added for credit prices, and found there were only two thousand, three hundred and ninety-five pounds of cotton seed at thirty-five dollars per ton, with six per cent, added for credit prices, making the item for seed forty-eight dollars and eighty-six cents instead of two hundred and -one dollars
We have carefully considered the evidence in the record, and we think that on the testimony of both Kennedy and McLendon it is shown that Kennedy had
The items of cash charged in Bradbury’s account are admitted to have been received by Kennedy, and, whether McLendon knew of this or not, the firm is liable for these cash items, and McLendon’s rights,
The finding of the chancellor that McLendon was entitled to a credit of twenty-five dollars and fifty-five cents on a bale of cotton shown by Exhibit A sold at Itta Bena, No. 525, weighing six hundred and forty pounds, the only evidence to support this finding is that' a cotton broker stated that this cotton was worth this amount more than was shown on the account of Bradbury. Kennedy says that Bradbury was authorized to sell it for the price shown in the account, and Bradbury testifies that it was sold for that amount, and that this was a fair price. We do not think the proof sufficient to authorize charging Bradbury with this item, and the chancellor’s finding as'to this item is reversed. As to the item of one hundred and ten dollars and forty-two cents charged to Bradbury for cotton seed grown on the place and not accounted for, we do not think the proof sustained the, chancellor’s finding. It appears that certain seed grown on the place was sold to the gin by McLendon and Kennedy for the repayment of borrowed money. Therefore this item is disallowed to McLendon. As to the item of one hundred and forty-
As to the item of the chancellor charging Bradbury with three hundred dollars for year 1917, and six hundred dollars for the year 1918, and for whatever excess there might be for 1919 and 1920, on account of new lease, we think the chancellor must be reversed. It is contended here by the appellee that, inasmuch as the lease was in writing, and necessary to be in writing to make a valid lease for five years under our statute, it would necessarily take an instrument of writing to surrender the lease, as it had longer to run than one year. If it was a mere executory agreement unperformed in any particular, this contention would be sound, but on the particular facts of this case, where not only was the instrument of writing surrendered and possession delivered up by Kennedy, and possession taken by Bradbury, but also other considerations passed between the parties, to wit, the surrender of live. stock for which the firm was indebted, it presents a case where the partnership would be estopped-to set up the plea of the statute of frauds or other plea of the necessity of writing to make valid the surrender of the lease. The entire plantation property was taken charge of by Bradbury under this agreement, his notes against the partnership given up, and the partnership lease ending through its agent, authorized to manage its financial business, having surrendered and delivered the instrument of writing creating the lease, and Bradbury having obtained full possession under such surrender, maxes the transaction a completed, executed contract. As to the item for rent of the house and lot in the town oi Moorhead, it appears from 'Bradbury’s testimony that McLendon agreed to pay ten dollars a month rent in case he held over longer than January, 1917, ,and according to McLendon’s testimony he agreed to pay
It follows that the judgment of the chancery court is reversed, and judgment will be entered here in accordance with the foregoing opinion.
Reversed, and judgment here.