Patterson v. Jones Mercantile Co., 78 So. 294

Patterson v. Jones Mercantile Co.

78 So. 294 | Miss. | 1918

Dissenting Opinion

StbveNS, J.

(dissenting). I dissent from the opinion of the court. The judgment appealed from, in my opinion, should be affirmed. The opinion of the court produces a situation that is unique. The real conclusion of the . court is that both the landlord and the ginner waived their liens, and necessarily this waiver was done one for the other. Our court, in Powell v. Smith, 74 Miss. 142, 20 So. 872, expressly held that:

The ginner’s lien as to all third parties “must be coextensive and reciprocal with the lien of the landlord. . . . Both are creatures of the statute, neither requiring record, but the statute charging, of itself, all the world with notice of the existence of the lien. Both are assignable, and the assignee under each has the same rights as the assignor had.”

It was expressly held in Irwin v. Miller, 72 Miss. 177, 16 So. 878, that our .statute which gives to agricultural laborers or employees lien upon the crops operated* in favor of the ginner, and our court has theretofore declared the policy of the statute to be “that the laborer *368is wortby of his food.” But the landlord, it must he conceded, first has the paramount lien, and so it is that both landlord and ginner are awarded liens. Of course, either could waive his lien, and under the authority of Duncan v. Jayne, 76 Miss. 133, 23 So. 392, the landlord in this ease waived his lien in favor of the ginner. The Duncan Case, then, unless overruled, controls the present case. The court does not overrule the Duncan Case, and does not question the soundness of the opinion therein. It appears that the Duncan Case was maturely considered, and the opinion delivered by a great judge, who, in speaking for the court, among other things, said:

“The ginning and baling of the cotton was necessary to prepare it for market, and, with no gin on the leased premises, it could not' have been expected by the lessor that the tenant would gin and bale the same without incurring a charge therefor, and the lessor, under the circumstances, must be taken as consenting to its payment out of the crop grown by the tenant. ”

And, further, the ginning and baling was “for the common good of all the parties interested,” and, the work being absolutely necessary, the ginner’s charges constitute “a lien upon the crop superior to all other liens, whether of the lessor or others.” A suggestion of error was filed in that case strenuously putting forward the words of the statute declaring the landlord’s lien to be, “paramount to all other liens, claims, or demands upon such products,” and that there was a special exception in awarding employees a lien in favor of the lessor of the land. This suggestion of error was promptly overruled. I do not question the soundness of the court’s reasoning in that case. If the owner of the plantation stipulates that his rent shall be paid in lint cotton, and does not provide a gin upon the leased premises, he knows in advance that the tenants must haul their cotton away from the leased *369premises to an independent operator of a gin, and there have the cotton ginned and haled and made available to all parties interested. In doing this work the ginner is in reality working as much for the landlord as he is for the tenant. In the present case there is no dispute about the facts that the landlord made no provision for the ginning on the leased premises; that she requested her tenants to have their cotton ginned at the plaintiff’s gin; that the ginning “was done with her knowledge and consent;” that the “ginning was necessary to prepare the cotton for market'; and that the cotton was appropriated by the defendant tb pay her rent after it had been ginned.” So it is that under the Duncan Case the landlord unquestionably waived her prior lien in favor of the ginner.

Did the plaintiff company, as ginner, waive its lien? If it did waive its lien, the waiver certainly was not in favor of a third party. Here the landlord, who had already waived her lien, received the cotton from the ginner. If the landlord had already waived her lien in favor of the ginner, how could it be said that the ginner, , by turning over the baled cotton to the landlord, thereby waived the ginner’s lien? It is unnecessary for the ginner to hold the cotton to preserve his lien. The ginner can recover from any one who has appropriated the cotton subject to the lien. All the ginner did here was to turn the cotton over to the party entitled to the possession. It was not the ginner’s cotton, and the ginner should not be-condemned for turning the cotton over to the party entitled thereto. McCormick v. Blum, 75 Miss. 81, 21, So. 707, relied on in the opinion of the court, has no application to this case. There the. manager, who sued for ■ the appropriation of the lien, was denied recovery because he himself shipped the cotton “from that plantation to the market of Greenville, and for the purpose of *370being sold in that market.” He bimself was an active agent in placing the cotton upon the open market, and thereby in having the rights of innocent parties involved. Our court in Powell v. Smith, supra, expressly stated that “waiver is the intentional relinquishment of a known right.” The agreed statement here says that the “plaintiff at the time such shipments were made had no intention whatever of releasing its ginner’s lien thereon.” The cotton was shipped to the landlord herself, and there was no act or statement by the ginner in addition to the bald fact of shipment by the ginner of the baled cotton to the landlord whereby waiver can be inferred. The landlord was not made to change her position to her hurt or damage. When the cotton was received by the landlord, she admittedly received it without any lien paramount to that of the ginner, for the simple reason that she had already waived that paramount lien. She does not stand in the shoes of an innocent purchaser in open market;, and so it is that by the opinion of the court an anomalous situation is produced whereby one lien is waived in favor of the other and both made to neutralize one another.-

If we follow precedent — previous decisions of our own court — this case must be affirmed.

Lead Opinion

Smith, C. J.,

delivered the opinion of the court.

Assuming for the sake of the argument that appellant waived her landlord’s lien on the cotton, under the rule announced in Duncan v. Jayne, 76 Miss. 133, 23 So. 392, appellee must also he held, under the rule applied in McCormick v. Blum, 75 Miss. 81, 21 So. 707, to have also waived its ginner’s lien when it delivered the cotton to appellant without notifying her that the charges due thereon by her tenants for the ginning thereof had not beén paid.

Reversed, and judgment here for appellant.