Warren & Montgomery Bros. v. Jones, 70 Miss. 202

70 Miss. 202 | Miss. | 1892

Campbell, C. J.,

delivered the opinion of the court.

The right result was reached in this case. The theory of the defense was fairly put to the jury by the instructions, so far as related to consent of Jones that his tenant might sell. The instructions asked by the defendants as to the partnership between Jones and Worsham, and the right of the defendants with reference to that, were properly refused, because they do not state the rule of law on that subject correctly. They assert that the defendants must have had knowledge or notice of the change of the relation between Jones and Worsham from that of partners to that of landlord and tenant. Not having dealt with Jones & Worsham during the brief period of the existence of the partnership between them, they were not entitled to be specially notified, and the instructions might be construed to require this.

The fifth and sixth instructions asked by the defendants were properly refused. Neither ignorance of the tenancy nor false statement by the tenant as to his right to sell agricultural products of the leased premises could defeat the claim of the landlord. Eason v. Johnson, 69 Miss., 371. The writer of this opinion entertained the view, shared by all composing the court then, announced in Westmoreland v. Wooten, 51 Miss., 825, and he re-affirmed it in Wooten v. Gwin, 56 Miss., 422, and in Dunn v. Kelly, 57 Ib., 825, and still has the same opinion of the question as an open one; but, as the court, by a clear misconception, as I think, of the views of one of the judges who decided the former cases, in the opinion in the case last mentioned, drifted into the conclusion that a landlord might hold a purchaser with notice liable, I acquiesced in the doctrine thus accidentally, established, because I got tired dissenting, and, besides, regarded the new doctrine as best for the agricultural interest, and made no dissent from the opinion in Cohn v. Smith, 64 Miss., 816, which, under the strange history of the question, I thought correctly decided. Having reached this result, it followed logically that notice by the purchaser of agricultural products could make no difference, and, in order to protect the landlord, his right must be made to depend not on notice, but on the fact that the defendant purchased what the landlord had a lien on, and thus the law is settled.

I was constrained by circumstances, as I think my brethren were, in deciding Cohn v. Smith, but, starting from that, there could be no other goal than that reached.

Affirmed.

Barnett Thompson, for appellants, filed the following suggestion of error:

In its opinion the court says : “ They [the instructions] assert that the defendants must have had knowledge or notice of the change of the relation between Jones and Worsham from that of partners to that of landlord and tenant. Not having dealt with Jones & Worsham during the brief period of the existence of the partnership between them, they were not entitled to be specially notified, and the instructions might be construed to require this.”

It is true defendants were not entitled to a special notice of the dissolution of the partnership, and, if the instructions are susceptible of this construction, they were erroneous. But we respectfully submit that when the instructions are considered in connection with the testimony, they could not have been misleading. There was no controversy over the kind of notice given. The plaintiff wholly failed to show that notice, either general or special, was given. The necessity, therefore, of defining in the instructions what kind of notice the defendants were entitled to was not apparent to us at the time the instructions were asked.

We proceeded on the assumption that, having shown the existence of a partnership, and a knowledge of its existence by defendants during its life, and their ignoi’ance of its dissolution, the burden of proof was on the plaintiff to show that notice had been given that the partnership had been dissolved. The burden of proof was on the plaintiff. 17 Am. & Eng. Enc. L., 1117, 1118. But did defendants have knowledge of the dissolution ? About this there was a conflict of testimony. And was notice of any kind of the dissolution given, either general or special? The testimony failing to .show that any notice was given, how could the jury have been misled?

The testimony was as convincing that no general notice was given as that no special notice was given. There was an utter want of evidence of either.

Per curiam.

The partnership feature of the case was not regarded by us as important, and the instructions on that were remarked upon merely to call the attention of counsel to their inaccuracy, which they admit.

The evidence shows that Worsham was dealt with individually on his own account, and without reference to any supposed connection with Jones.

Denied.