Abrams v. Allen

• Decision Date: 21 June 1915
• Citation: 68 So. 927,109 Miss. 688
• Court: Mississippi Supreme Court
• Parties: ABRAMS v. ALLEN ET AL

68 So. 927

109 Miss. 688

ABRAMS v. ALLEN ET AL

Supreme Court of Mississippi

June 21, 1915

March 1915

APPEAL from the circuit court of Copiah county. HON. D. M. MILLER Judge.

Suit by R. Q. Allen and others against D. Abrams and another. From a judgment for plaintiff, Abrams appeals.

The facts are fully stated in the opinion of the court.

Reversed and remanded.

H. J Wilson, for appellant.

This suit was upon contract for the payment of rent and supplies. The most that the proof shows, so far as appellant is concerned, is that he bought potatoes grown upon the leased premises and on which there was a lien to secure to Allen the payment of Newman's rent and account. Abrams never promised, agreed or undertook in any manner to pay the note or the account. It is not even shown what Abrams did with the potatoes. We can surmise that he did use them and convert them to his own use, but this, even, is an assumption not shown by the record. The fact that he brought the potatoes from Newman alone did not render him liable even in tort to Allen; he must have converted them to his own use and thereby destroyed Allen's lien. The proof wholly fails to make out the case against Abrams that was charged in the pleadings. The proof is at fatal variance with the declaration, and the peremptory instruction given by the court for the plaintiff was manifestly erroneous.

The principle of this case is controlled by the theory laid down in the case of Chism Brothers v. Annie A. Alcorn, 71 Miss. 506. In this case the proof showed that Bush, the tenant of Mrs. Alcorn purchased goods to the amount of three hundred dollars from Chism Brothers. That Mrs. Alcorn waived her lien in their favor with the agreement that the proceeds of Bush's crop should be applied to the payment of his debt to Chism Brothers. Part of the crop was so applied, but a considerable portion was taken by Mrs. Alcorn and appropriated to the payment of the debts owed to her by Bush. Chism Brothers sued Bush and Mrs. Alcorn jointly for the balance on the account due by Bush to them. It was shown that Mrs. Alcorn never promised or agreed to pay their account. The court held that while Mrs. Alcorn might have been held liable on a breach of a contract to apply the crop, yet Chism Brothers could not recover from her in the manner in which the suit was brought. In the instant case appellant never promised or undertook at any time or in any manner to pay the...