Ball v. Sledge

• Decision Date: 21 December 1903
• Citation: 35 So. 447,82 Miss. 749
• Court: Mississippi Supreme Court
• Parties: WILLIAM BALL ET AL. v. EDWARD SLEDGE

35 So. 447

82 Miss. 749

WILLIAM BALL ET AL. v. EDWARD SLEDGE

Supreme Court of Mississippi

December 21, 1903

October 1903

FROM the circuit court of Bolivar county. HON. A. McC. KIMBROUGH Judge.

Ball and others, appellants, doing business under the name of Ball, Brown & Co., were plaintiffs in the court below Sledge, appellee, was defendant there.

Sledge appellee, rented lands in this state from one Williamson for the year 1900. He afterwards gave a deed of trust to Ball and others, appellants, on his crop, some live stock and his farming implements, to secure advances made by them to him for that year. Ball and others, appellants, were merchants doing business in Memphis, Tenn. Appellants had actual notice of the rental contract between Williamson and Sledge, and paid Williamson $ 150 of the rent for the year. Sledge did not pay appellants, and early in the year 1901 they sent their agent to see Sledge, and gave him the amount he owned them, which was $ 295 on account, and the $ 150 they had paid on the rent for 1900. The agent went to see Sledge, and urged the payment of the debt; and Sledge agreed that two bales of cotton raised on the land rented from Williamson and two mules might be sold by this agent, and the proceeds applied to the payment of said debt. The agent sold the property, and applied the proceeds to the payment of the open account, for the time forgetting the amount that had been paid on the rent, and paid a small balance in money to Sledge, and gave him a receipt in full of the amount due to appellants. This mistake was afterwards discovered, and not getting satisfaction from Sledge, appellants brought this action of replevin under their deed of trust to recover from Sledge three horses and the farming implements covered by the deed of trust. The affidavit fixed the aggregate value of the property at $ 145, and the return of the officer on the writ fixed it at $ 132. The suit was brought in a justice of the peace court, and from a judgment for defendant plaintiffs appealed to the circuit court. There was considerable testimony taken as to the value of the property seized, some witnesses fixing it at more, and some less, than $ 200.

The first and second instructions given for defendant in the circuit court are as follows:

"(1) If the jury believe from the evidence that the value of the property replevied in this suit exceeded the sum of $ 200 at the time suit was instituted, they must find for defendant."

"(2) The court instructs the jury that the rent note paid by plaintiffs is not covered by the deed of trust, and if they find from the evidence that the defendant, Sledge, paid in full all indebtedness due plaintiffs, except said rent note they must find for defendant."

The second and third instructions refused for plaintiffs are as follows:

"(2) The court instructs the jury that if they believe from the evidence that in January, 1901, the plaintiffs, through their agent, Green, received from Sledge, in this county, two bales of cotton which were subject to an unsatisfied landlord's lien held by Williamson, and that the plaintiffs, in this county, appropriated the said two bales of cotton, and the proceeds thereof, selling the same, and placing the proceeds to the credit of the defendant in account, then they were liable to the owner of the rent note offered in evidence for the value of the said cotton; and, if the plaintiffs were so liable, then the defendant became liable for such value, and such liability is protected by the mortgage offered in evidence, and the jury will find for the plaintiffs, unless they believe that such liability, if any, has been discharged by the defendant.

"(3) If the jury believe from the evidence that defendant shipped to plaintiffs, in Memphis, Tenn., cotton raised on land rented in 1900 by the said defendant from Williamson, and that such shipment was made because of the demand of plaintiffs, or by reason of defendant's contract and agreement with plaintiffs, and that such cotton so shipped was subject to landlord's lien held by Williamson, and that plaintiffs had actual knowledge then of said lien, and that such landlord's lien has been satisfied and discharged by plaintiffs, because of their liability for same, then the jury will find for plaintiffs, unless they further believe from the evidence that the said defendant has fully paid and satisfied the amount so paid by the plaintiffs in discharging the landlord's lien."

From a verdict and judgment for defendant, plaintiffs appealed to the supreme court.

Reversed and remanded.

Moore & Clark, for appellants.

The court below erred in refusing to give the second and third instructions asked by plaintiffs. It is shown and admitted by appellee that appellants had received from appellee cotton liable to Williamson's rent lien, having actual notice of said lien; and also, on January 23, 1901, received and appropriated, in Bolivar county, Mississippi, and on the leased premises, two bales of cotton, subject to said unsatisfied lien. Because of such receipt and appropriation appellants were compelled to pay Williamson, from the proceeds of said cotton, one hundred and fifty dollars on his rent claim, and such payment pro tanto reduced the credits to which appellee was entitled. Appellee, after deducting the rent payment, $ 150, from credit in account, was justly indebted to appellants, as balance due on his note, in the sum of $ 445.80 instead of $ 295.80 -- the amount actually paid.

It is abundantly shown, and virtually admitted by appellee, that Green, the agent of appellants, overlooked the $ 150 rent item and made mistake in giving receipt in full, when he had positive instructions to collect both the balance due on account of money, etc., furnished appellee, and also the $ 150 rental paid Williamson, and when he thought, at the time of the execution of said receipt, that he had collected all that appellee owed his principal, both on account, notes or for rental paid.

If it be possible that we are wrong in the foregoing, then it cannot be denied that the court committed a fatal error in giving the second instruction asked by appellee. This second instruction given at the request of appellee amounted virtually to a peremptory instruction to find for appellee, notwithstanding the fact that the item of indebtedness therein referred to was expressly, frankly, and freely admitted by appellee, and was expressly secured by the terms of the trust deed and under which replevin was sued out.

By the terms of that instruction, the jury was told, virtually, that the value of the property levied upon need not be considered -- that the item of indebtedness claimed was not secured by the trust deed, and that verdict must be returned for the defendant. Certainly a strange and unwarranted construction of the written contract, a fatal error which this court will hasten to correct.

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