48 So. 898 | Miss. | 1909
delivered the opinion ,of the court.
This is a suit by Baker against Peets & Norman Company to recover the alleged value of 300 crates of tomatoes claimed to have been bought by Peets & Norman Company from one Packer. The claim of Baker grows out of a rental contract which he had with Packer for the lease of certain agricultural lands during the year 1907. The right attempted to be asserted against Peets & Norman Company is based on Code 1906, § 2832, whereunder is given to the landlord a lien on all the agricultural products grown on the leased premises, •etc.
All of the witnesses in this case testify with great candor and fairness, and the facts are as follows, viz.: Baker, being the owner of certain lands in Copiah county, made a lease of same to Packer for the year 1907. Peets & Norman Company are merchants, and during the year furnished Packer, on open account, a considerable quantity of merchandise, largely exceeding in value the. proceeds of tomatoes received by Peets & Norman Company from Packer. The crop made by Packer consisted altogether of tomatoes, and it is shown by Baker that Packer delivered the tomatoes grown on the land to Mr. Nor
•- Baker testified that he had a talk with Norman some time in June, and told him that Packer had not paid his rent, and that he would hold Peets & Norman Company responsible for the value of the tomatoes received by them. This is not disputed by Norman but Norman says, that he thinks this conversation occurred about the close of the tomato season.
Dodds, the bookkeeper for Peets & Norman Company, testified that he had a conversation with Baker in reference to the Tom Packer tomatoes, that in such conversation Baker told him that the rents were not paid, but he does not think he mentioned what Baker said to Norman; that all during the time Peets & Norman Company were receiving the tomatoes from Packer he (Packer) was trading with them on open account, and was shipping the tomatoes through the firm of Peets & Norman Company; that the shipping began on the 28th day of May, and stopped about the 5th of July; and in answer to a direct interrogatory he was asked this question: “Q. What was the amount of tomatoes he (Packer) delivered to you? A. The' total number of crates was 402, and the amount was $255.60. He owed something like $300 to the store at the beginning of the season. He delivered these tomatoes to be placed to this account.” He further says that these tomatoes were delivered to, and they were shipped out of the state of Mississippi b'y, Peets & Norman Company, and sold in foreign markets.
Webster Millsaps testifies that he went with Baker to Peets & Norman Company’s store and looked at the books to see if there was enough to pay the rent, and that at the time they went
Packer, the tenant, testifies that he does not know exactly how many tomatoes he took to Peets & Norman Company, but that he brought them in there to Norman and took his receipts. He further says, in answer to the interrogatory as to whether or not there was any understanding between him and Norman about what to do with the proceeds of the sale, that he had an account there, and that Dodds, the bookkeeper, gave him credit on his account for the tomatoes shipped, and all the proceeds of the tomatoes shipped through Norman were applied to his account, and statements were rendered showing the amount they brought. On cross-examination he is asked the following questions, viz.: “Q. You turned over all your tomatoes to Norman that you raised? A. Yes, sir. Q. And the proceeds of the sale were applied to your account? A. Yes, sir. Q. You never saw a cent of the money? No, sir; but I always got the consignment receipts.”
In Norman’s testimony he states that Packer owed him an account amounting to $560.76, and when asked, “Q. How man'y tomatoes did you buy from him ?” he answered: “A. I see three different shipments, amounting to $60. This was applied on his accounts, the tomatoes you see here. I believe in telling the truth about it. I can show you from our books. The tomatoes that were bought from Packer haven’t been entered here. The tomatoes he grew on the Baker place were applied on his account, and those he sold for Lewis & Byrd were paid for at the time.” Norman does not deny that the tomatoes were received to be applied to the account of Packer, as stated by Dodds, when the proceeds should be returned, and does not deny that he knew, at the time, that Packer was the tenant of Baker.
The facts constitute a conversion by Norman of the tomatoes
In the face of these facts, showing active agency of Peets & Norman Company in this state looking towards a sale of these tomatoes outside of the state and an application of the proceeds to Packer’s debt with them, the principle declared by the cases of Ball v. Sledge, 82 Miss. 749, 35 South. 214, and Millsaps v. Tate, 75 Miss. 150, 21 South. 663, have no application. The conversion of the agricultural products must take place outside of the state in order to make the principle applicable, and there must have been no active agency on the part of the person seeking to invoke the principle taking place in tips state and looking
In the case of Ball v. Sledge, 82 Miss. 747, 35 South. 214, there was no controversy involving the rights of a landlord, except incidentally. There was-no landlord in that case at all. The facts show that Sledge rented lands in this state from one Williamson for the year 1900 and agreed to pay $150 as rent. Afterwards Sledge gave a deed of trust to Ball, who was a merchant living in Memphis, on his crop and some live stock, etc., for advances to be made him by them for the year 1900. Ball knew of Sledge’s lease contract with Williamson, and paid Williamson Sledge’s rent for the year. At the end of the year Sledge failed to pay Ball for the advances made him, and early in 1901 Ball sent his agent into Mississippi to see Sledge, who then owed a balance of $295 on account and the $150 for rent that Ball had paid to Williamson for him. A settlement was agreed upon between the agent of Ball and Sledge, whereby certain personal property was turned over by Sledge to be sold for
The Millsaps case, in 15 Miss. 150, 21 South. 663, is equally without application to the facts of this case. Millsaps owned a plantation in Washington county, Miss., and leased same for the year 1893. Tate lived in Memphis, Tenn., and the tenants executed to him a deed of trust on the crops to be grown on the leased premises during the year. In the fall the tenants shipped the cotton to Tate in Memphis, and Tate then sold and applied the proceeds to his indebtedness, and the rent wa's left unpaid. The record does not show that Tate was ever in the state, and it nowhere appears that the tenants delivered to him any of the cotton within the limits of the state of Mississippi. Millsaps sued Tate, and the court said that the lien stopped at the state line under the facts of this case. It was further argued in this case that the mere fact that Tate took a deed of trust on the cotton to be grown by the tenants on the leased premises for the year 1893, stipulating that the tenant should ship to Tate all the agricultural products raised on the leased premises, fixed fraudulent and unlawful participation on the part of Tate, and the court said that this act alone would not render Tate liable, and additionally said: “Appellees had no agency in shipping the cotton out of this state. They did not order it done. They did not know it had been shipped at all, until notified by the railroad company of its arrival. As a matter of fact, they did not know that the landlord’s claim for rent had not been fully paid, and they did not know the cotton was raised on the leased premises.” Now, all these things, which the court said Tate did not know, Peets & Norman Company did know. Peets & Norman Company did have an agency in shipping the tomatoes out of the state. All their assistance in accomplishing this was given within the state. They knew that the landlord’s rent had not been
In the case of Hernandez v. Aaron, 73 Miss. 434, 16 South. 910, it was held that, when cotton liable under a deed of trust was -shipped and sold to a party outside of the state, such party was not liable to the holder of the lien, and it was said, further: “Appellant was not aware of this shipment when it was made, nor was he informed of appellee’s liens under his trust deeds until after the cotton had been sold in New Orleans. He did not receive the cotton at all inWilkinson county.” It will be noted that the co-urt was very careful to state that none of the cotton was received by the purchaser in this state; for, if it had been, there would undoubtedly have been a liability. Almost identical in its holding is the case of Chism v. Thomson, 73 Miss. 410, 19 South. 210.
If there can ever arise under the statute any case where a creditor of a tenant can be made liable to the landlord for the rent, where it is not shown that the creditor actually took the products themselves at an agreed valuation at the time, though in truth and in fact he converted and intended to convert the products to his own use at the time he received them, this is the case.
Affirmed.