Coleman v. Siler, 74 Ala. 435

74 Ala. 435 | Ala. | 1883

SOMEKYILLE, J.

— There seems to have been a needless multiplicity of instructions demanded of the court by the appellant’s counsel, in the trial of this cause below, especially in view of the very few elementary principles which, in our jndgment, should have controlled the decision of the jury in forming their verdict.

The action is one on the case, brought by Siler, as landlord, claiming damages for the loss or destruction of his lien for rent on four bales of cotton, purchased and shipped by defendants with a knowledge of plaintiff’s lien. The defendants claimed as purchasers from one Pennington, who held a mortgage or crop-lien upon the cotton, executed to him by the lessees, or tenants. It is not denied that both the mortgagee and the defendants had notice of the plaintiff’s lien. This seems to have been conceded throughout the progress of the trial. It is contended, however, that there was a waiver, or abandonment of the landlord’s lien; and this is the controlling point of controversy in the case.

Whether such a lien is waived, or not, is chiefly a question of intention, to be determined, like other questions of fact, by the circumstances of each particular case. This court has held, that such a lien is not impaired, as a vendor’s lien would in like case presumptively be, by the landlord’s taking from the tenant a note with personal security for the payment of the rent. Denham v. Harris, 13 Ala. 465. Neither, as expressly adjudged, will the mere consent of the landlord to the removal of the crops from the premises, without more, operate as a waiver. — Tuttle v. Walker, 69 Ala. 172. Before the law will authorize such intention to be inferred, the rule is, that it must be made obvious by'plain proof.

What may have been the effect of the plaintiff’s letter written to Pennington, on January 26th, 1881, in which he obligated himself not to furnish advances to his .tenants if Pennington would furnish them, — so far, at least as it immediately concerns the four bales of cotton in controversy — we need not just here decide. This was a matter of contention between them, which was intended to be settled by their subsequent written agreement, made in September, 1881, — a proper construction of' which must chiefly determine the relative rights and conflicting priorities of the parties litigant.

It is shown that the plaintiff originally had a claim against his tenants, not only for rent, but also for advances made under the provisions of the statute. — Code, 1876, § 3467. These advances, not less than the rent, constituted a lien in favor of the plaintiff upon the crops grown on the rented premises, each equal in dignity to the other, unless there was some fact which would operate as a loss, waiver, or abandonment of this statutory right.— Wilson v. Stewart, 69 Ala. 302. The main question is, how far this result was effected by the written agreement executed in September.

The clear purpose of this agreement was to modify, and, to some extent, abate the claims of the plaintiff, as secured to him by the statute. It was stipulated, that Pennington was to get, in the first place, three bales of cotton, two of which were to be delivered by the tenant 'Williams, and the other one by Austin, on that day; and it was agreed that he was to take these three bales, “ less the rents.” We construe this to mean, subject to the lien of the rents as such, and not the advances. In view of the controversy previously existing between the parties, as to the relative priority of their respective claims for advances, it is obvious that the retention specifically of a lien for rent, eo nomine, is an exclusion of that for advances on these particxdar three bales of cotton. The maxim- obviously applies, Kxpressio unius est exclusio alterius.

The evidence, we repeat, tends to show that these three bales of cotton went into the hands of the defendants, with full knowledge of plaintiff’s lien.

The agreement under consideration, in the next place, makes provision as to the remainder of the cotton to be received from the same two tenants, Williams and Austin. It makes no reference to any other cotton, such as might be received, if any, from McKee, or the other tenant. Tvw-thirds of this remainder only is made subject to plaintiff’s lien, and this is limited to rent and advances for the year 1881; or, in other words, to the indebtedness of these tenants for advances made during this year, and any balance of the entire rent which might remain unsatisfied by the three bales of cotton first mentioned.

If McKee owed the plaintiff any advances, such indebtedness would not fall within the influence of this agreement, in whatever particular year these advances may have been made. Nor would the agreement itself embrace any indebtedness held by plaintiff against his tenants for any other year than 1881. Nor, again, would parol evidence be admissible, to show a contemporaneous agreement of the contracting parties that such should be the case, although a subsequent verbal agreement might be proved, which would have this effect. It does not appear, however, that any one of the four bales of cotton in controversy was raised by McKee. The evidence tends to show that they were all covered by the stipulations of the written agreement.

It is insisted as a defense to this action, that the complaint declares only upon the lien for rent, and that the rent was paid. The argument is, that plaintiff’s lien for rent, at least on the cotton grown by McKee, was superior to his lien for advances, and that he was compelled to appropriate all cotton received from McKee to the satisfaction of this superior lien. This aspect of the case requires us to construe the effect of plaintiff’s letter to Pennington,- in which he. agreed not to advanee to McKee and the other tenants, if Pennington would do so. This letter has no bearing on that portion of the cotton received from Williams, or from Austin. That is governed by the subsequent agreement of September 22,1881, to which we have above alluded.

The clear effect of the letter in question was to subordinate, or postpone, the plaintiff’s lien for advances, to any advances made by Pennington on the faith and strength of its assurances. It conferred on Pennington, in other words, a priority of lien for his advances, over the advances made by the plaintiff for the same year — 1881. The agreement of September modified this priority of lien, only so far as it affected the cotton received from Williams and Austin. It did not modify, or limit it, so far as it attached to, or concerned the portion of the crop received by plaintiff from McKee. This, as we have said, must rest upon different grounds, because it is not covered by the stipulations of the September agreement. We are of opinion that the plaintiff was precluded from appropriating any portion of the cotton raised by McKee to the satisfaction of his claim for advances made in the year 1881, until Pennington’s claim for advances, made the same year, 'was fully satisfied.

The rulings of the court are not in harmony with the foregoing views, as is clearly apparent from the refusal of several charges requested by the appellant’s counsel.

It is almost needless to add, that the authority given by plaintiff to Pennington, to sell certain 'cotton to the defendants, was an authority to sell only for money, or cash. It gave no authority to appropriate the cotton in satisfaction of his personal debts due to the'defendants. When he undertook to do this, he and the defendants were guilty of a joint conversion of the plaintiff’s property, and no title to the cotton was conferred by the one wrong-doer, or acquired by the other. It is well settled, that no special agent, who is authorized to sell, can pay his own debts with the property of the principal. — Burks v. Hubbard, 69 Ala. 379; Benj. on Sales, § 742.

It appears from the pleadings in the case, that the plaintiff claims a lien based only on a debt due him as rent. The evidence tends to show that a part of the sum claimed was for advances ; and although the lien of the two is of the same dignity, because made so by the statute when due to the landlord, yet the one is essentially distinct from the other, and the matter of description is material. Notice of the relation of landlord and tenant, for example, operates as constructive notice of rent, but not of advances.— Wilson v. Stewart, 69 Ala. 302. Where the plaintiff declares upon a lien for rent, he can not recover upon one for advances. The variance would be fatal, and the court erred in refusing to so charge the jury.

It is a general rule, liable to some exceptions, that when a party introduces a witness in proof of his case, he represents him as. being worthy of belief, and the law will no.t permit him afterwards to impeach the witness’ general reputation for truth, or to impugn his credibility by general evidence tending to show him to be unworthy of belief. — 1 Greenl. Ev.' § 442.. But it can not be said, as matter of law, that, in all cases, the testimony of a party’s own witnesses must be always taken most strongly against him. The witness may exhibit a degree of bias against the party offering him, and of manifest partiality for the adversary party, such as to authorize the jury to give very slight weight to his testimony, either for or against either party. The court very properly so declared the law in the present cause.

There are some other phases of the case, which we decline to consider, as they will not probably arise again upon a second trial.

The judgment is reversed, and the cause remanded.