Powell v. Thompson, 80 Ala. 51

Powell v. Thompson

80 Ala. 51 | Ala. | 1885

SOMERYILLE, J.

The action is brought by a landlord, against his tenant- and other defendants, for removing crops grown on the rented premises, with notice of the existence of the plaintiff’s lien for rent and advances, and converting, or otherwise making way with such crops, so as to defeat the enforcement of the lien by the statutory remedy of attachment. The form of action is in case, and the right of recovery is based on the alleged tortious act of the defendant, by which it is claimed that the landlord has been injured, the extent of his injury being the value of his lost lien. — Thompson v. Powell, 77 Ala. 391. The suit, in other words, is not for the conversion or trespass inv.olved in the act of removing the crops, but for the same consequential in jury resulting therefrom in the loss or destruction of the plaintiff’s lien.

It does 'not appear that the landlord and the tenant- — here plaintiff and defendant — entered into any written contract which was intended to define fully and completely the rights and liabilities of both of the contracting parties. It is shown, however, that the tenant, Amos Powell, executed on his part a written agreement, bearing date January 22d, 1881, by which he promised to deliver to the plaintiff, at a specified time and place, twenty bales of cotton, of the average weight of five hundred pounds per bale, as a stipulated compensation for the annual rent of the land, upon which the crops in controversy were raised.

It is a settled rule of law, that where the whole of a contract has not been reduced to writing, so much of- it as is separable and distinct, may be proved by oral evidence, even though contemporaneous with the writing, without infringing the principle, that such evidence is inadmissible'to contradictor vary the legal effect of a written instrument. — Huckabee v. Shepherd, 75 Ala. 342; 1 Addison Contr. (Am. Ed.) § 243-; 1 Greenl. *55Ev. § 285 a. Where, for example, a tenant promises in writing to pay a stipulated rent to his landlord, .and so much of the contract as was intended to state the liabilities of the landlord is not reduced to writing, but was left to rest in parol, it may be shown by oral evidence that he agreed with the tenant, although contemporaneously with the execution of the tenant’s rent note, to make repairs on the rented premises, or incurred other like liability.— Vandegrift v. Abbott, 75 Ala. 487. This rule, however, does not permit the oral contradiction of that part of the agreement which is reduced to writing, and is in itself complete. It merely authorizes a separate agreement to be established by parol, as to a matter on which the writing is silent, and which is not contradictory of its terms; and this only where the court can properly infer, from the circumstances of the case, that it was not the intention of the parties that the writing should be a complete memorial, of the entire transaction between them. — Stephen on Ev. (Reynold’s Ed.) p. 122.

It was not allowable, under this principle, to contradict the express terms of the defendant’s written agreement by - oral proof of a promise to pay moi’e rent than that stipulated. If it were permissible to show that, in addition to the twenty bales of cotton agreed in writing to be delivered, it was orally agreed to deliver as part of the same consideration, twenty-eight hundred bushels of cotton seed, as contended, it would be quite as competent, on the same principle, to prove an oral ageement of the tenant to pay as many hundred bales of cotton. The court, in our opinion, erred in allowing this evidence to be admitted.

It was equally erroneous to allow the plaintiff to prove that “it was a rule or custom he had made on his plantation.,” that he should have all the cotton seed raised on his land by his tenants, even though this fact was known to the defendant, who was his tenant under the present contract of renting. One man alone can uot establish a custom or usage. This was a mere personal mode of dealing on the part of the plaintiff, and was in no local sense a custom, because it was not general, but personal. — 2 Parson’s Contr. 541.

The evidence, moreover, would seem to contradict the express terms of the rent note, and was, for this reason, objectionable.— Wilkinson v. Williamson, 76 Ala. 163; Barlow v. Lambert, 28 Ala. 704. The tendency of modern authorities is strongly against the loose policy of the English courts, as manifested in their earlier decisions, admitting inconclusive facts in proof of local usage, and thereby contradicting the necessary implications of written agreements, under the pretext of annexing incidents to them.— Thompson v. Riggs, 5 Wall 663; Brown v. Foster, 113 Mass. 136; Lansan on Usages, pp. 371, 417.

*56The gravamen of the present action, as we have said, is the consequential destruction of the plaintiff’s lien by the removal and sale or consumption of the crops through the alleged unlawful act of the defendants. If this result has been produced by the joint act. of the several defendants, co-operating together with a knowledge of the plaintiff’s rights, and without legal excuses, they would all be liable, jointly or severally, for the injury thus done. The act of each of the wrong-doers would be regarded as the act of all, and the acts of all, in consummation of a common purpose, would be the acts of each. But, for separate and distinct wrongs, in no wise connected by the ligament of a common purpose, actual or imputed by law, the wrong-doers are liable only in separate actions, and not jointly in the same action. — Larkins v. Eckwurzel, 42 Ala. 322; Barbour on Parties, 203-205.

The removal of crops, subject to a landlord’s lieu, without first paying the rent or obtaining his consent, is prima facie a wrongful act, in effect forbidden by statute, and, if unexplained, constitutes a just ground for attachment. — Code, 1876, § 3472. It tends also to the destruction of the landlord’s lien by lessening his dominion and power of supervision over property designed for the security of his rent. — Thompson v. Powell, 77 Ala. 391, supra.

The wrongfulness of such removal, however, may be rebutted by showing legal right or excuse for it. It may be justified by showing, as in this case, “ that the crops have been attached by the landlord” on some statutory ground, and replevied by the execution of the requisite bond on the tenant’s part, provided this be done in good faith for the preservation of the property, and not for its waste or consumption. Such replevy does not destroy either the lien of the attachment created by the levy, or that of the landlord for rent created by statute, which exists independently of the levy, and even after the dissolution of the attachment or the quashing of the writ for formal defects in its issue. But it confers on the tenant the right and makes it his duty to take proper care of the property replevied. He becomes the bailee of the sheriff for its safe custody, and for the pui’pose of its preservation both he and his sureties have a special property in the goods. — • Woolfolk v. Ingraham, 53 Ala. 11; Cordaman v. Malone, 63 Ala. 556. The expiration of a tenant’s term, and his own removal to other premises, might well justify him in removing crops replevied under attachment proceedings, in order to insure their safe custody.

If a tenant replevies such property, however, as a mode or device of obtaining possession, under color of legal authority, and with intention to sell or convert .it, and not bona fide for the purpose, of its preservation, this would be a tortious act, *57and all who co-operate in it, with knowledge of the tenant’s purpose and of the landlord’s rights, would be liable as co-tortfeasors.

The court, in our opinion, committed no error in admitting in evidence the bond, and other papers, executed by the parties to the suit, and relating to the subject matter of it — the replevied crops. They showed their interest in, and relation towards the property, and served to throw light upon their conduct in dealing with it subsequently. Prima facie these papers imputeS nothing but good faith in their dealing, but this could be repelled by the facts, if deemed sufficient. The burden was on the plaintiff to show collusion on the part of the several defendants in doing some one or more wrongful acts destructive of the plaintiff’s lien as landlord and in execution of a common intent to this end, each being responsible for the natural and probable consequences of his acts, or those of his co-defendants in which he co-operated by counsel or assistance.

The judgment of the Circuit Court is reversed and the cause remanded.

Clopton, J\, not sitting.