Cooper v. Frierson

48 Miss. 300 | Miss. | 1873

SlMRALL, J. :

The appellant and appellee are contestants for a prior satisfaction of their respective debts against Page & Hubbard, out of cotton, the product of a crop produced in 1870.

The controversy arises upon this state of facts: Cooper, the appellant, having the control of a plantation known as the “Winston place,” entered into a contract with Page & Hubbard, to raise a crop thereon, on these terms: Cooper “ to furnish the supplies, and afford necessary assistance to Page & Hub-hard to make the crops; they to find and pay the labor. The crops when gathered were to be equally divided. Cooper, for all advances made, was to be paid out of the crops, the residue to be divided between them.” He was to be re-imbursed for personal supplies. Advances were made by Cooper to the aggregate amount of $2,500, of which $900 was paid, leaving a balance of $1,600 due.

Frierson claims that he has furnished g’oods to the amount of $608, to Page & Hubbard, and that by virtue of a contract made with them on the 17th day of November, 1870, which has been “enrolled in the office of the circuit clerk,” he has acquired an agricultural lien under the statute of 1867. To obtain the fruits of his lien, Frierson brought this suit against Page & Hubbard, in which he asserts his claim for supplies already furnished, and others to be furnished by the terms of his agreement.

Cooper presented a motion to be made a party defendant, which was allowed. In his answer he controverts and denies that Frierson acquired a lien, on several grounds. That the contract with Page and Hubbard was under seal; was signed by Page alone, and has never been ratified by Hubbard; that the supplies, or much the larger part, were sold after the cultivation was over and a considerable part of the cotton gathered; that the major part of the “ articles” were not “things necessary for the cultivation of a farm;” that the contract (or a copy) was not left on file in the clerk’s office.

Page & Hubbard made no defense, but suffered the bill to be taken for confessed. Cooper, of tbe one part, and Page & Hubbard, of tbe other, went into the joint adventure of producing a crop of cotton, etc., in the year 1870. As between themselves, the agreement plainly states their several obligations and duties, the extent of their respective interests, and the terms upon which the result, if there should be a profit, should be distributed. Page & Hubbard plainly could receive nothing until the contributions towards the crop, made by Cooper, were liquidated. The cotton was the fund to pay, first, Cooper’s outlays, and the surplus, if any, to be divided.

In this manner, and upon these terms, the three were jointly interested. They did not adopt a partnership name. They seem to have taken no measures to hold themselves out to the world as agricultural partners, except so far as they may have been seen co-operating on the same plantation. No steps were taken to give notice to the public of their inter se contract.

When Frierson, therefore, made negotiations or contracts with either of them, not holding themselves out as general traders or as commercial dealers, simply as jointly interested in making a crop, the range of the business was so limited that it seems to us he was obliged at his peril to inform himself of the terms of their association and the powers communicated to bind themselves jointly. Cooper being on ' the premises, apparently controlling the farm, would certainly appear as having an interest. The agreement, if it constitutes a partnership, manifestly makes him a member. Yet Frierson treats the firm as composed of Page and Hubbard. He sold the goods on their credit, and exacted the lien from them alone. The theory of the complainant was, that Page and Hubbard were partners; that Cooper is a stranger to the concern, who has put out supplies to them, but whose demand must be postponed to his lien. In the most favorable view that may be taken of tbe complainant’s demand, he was bound to acquaint himself of the agreement of association between these parties, so as to know the scope of authority to bind each other or pledge the crop.

In some sorts of business, as commercial dealing and general trading, the nature of the business, its necessities, the usual course of conducting it, proclaim to the public that each member is competent to make contracts within its scope and objects; give notes, bills of exchange, etc. Other partnerships are of a more limited character, confined to a single adventure. In such cases, according to the nature of the business, and what is usual and customary, will be the measure of each partner’s authority. Davis v. Richardson et al. 45 Miss. 507.

The right asserted in this suit by Frierson is dependent on the acquisition of the lien. Two conditions are imposed upon the creditor: 1st. An enrollment of his contract in the circuit court clerk’s office; for, from that date the lien begins. Pamph. Acts 1857, § 1, p. 569. This enrollment must be made according to the formula given • in the third section. But the creditor must do more; “ he must file the contract, or a copy thereof, in the clerk’s office.” The enrollment is a brief summary to g’uide the inquirer to the knowledge of the name of the creditor and debtor, the amount of debt, when due, and when the contract was filed. (Third section.) The contract, or a copy, must be on file, so that it may be open to the examination of all persons interested.

The filing and enrollment complete the lien. The statute is not satisfied, by the indorsement on the contract, that it was filed, if the creditor withdraws it and keeps it. For what purpose make such indorsement, if the paper may be taken away ? The term “ filing” imports that the paper shall remain with the clerk as a record, subject to be inspected by those who have an interest in it, and to be certified by him as any other paper properly lodged in his office and committed to his custody.

It is admitted that Frierson’s contract was not, in this sense, “filed” in the clerk’s office. It follows, then, that he has no lien. This defect goes to the foundation of his suit.

It is unnecessary to consider the other points raised and discussed by counsel.

Decree reversed and cause remanded for further proceedings, in accordance with this opinion.