Boddy v. Thompson

• Decision Date: 25 February 1929
• Docket Number: (No. 185.)
• Citation: 14 S.W.2d 240
• Parties: BODDY v. THOMPSON. FARNSWORTH EVANS CO. v. SAME.
• Court: Arkansas Supreme Court

Page 240

14 S.W.2d 240

BODDY v. THOMPSON.

FARNSWORTH EVANS CO. v. SAME.

(No. 185.)

Supreme Court of Arkansas.

February 25, 1929.

Appeal from Circuit Court, Little River County; B. E. Isbell, Judge.

Actions, consolidated for trial, by P. H. Boddy against A. D. Thompson, who filed a cross-complaint, and against the Farnsworth Evans Company, respectively. Judgments for defendants, and plaintiff appeals. Reversed and rendered as to defendant Thompson, and affirmed as to defendant corporation.

This appeal challenges the correctness of two judgments of the Little River circuit court in actions of replevin, brought for foreclosure of a mortgage, consolidated for trial; the one judgment being in favor of appellee Farnsworth Evans Company, for possession of 109 bales of cotton taken under replevin in appellant's suit therefor, and the other in favor of appellee Thompson, lessee on appellant's plantation, for the personal property taken from him under the writ of replevin for foreclosure of the mortgage thereon and the value thereof, fixed by the jury at $5,298.30, with $1,000 damages for its wrongful detention.

Appellant, the owner of the plantation in Little River county, leased same to appellee Thompson for the year 1927, taking Thompson's mortgage, dated February 24, 1927, for $27,000 for rent and supplies, payable November 1, 1927, with a chattel and crop mortgage from him executed said date, conveying certain mules, wagons, harness, farming implements, and all the crops to be planted and grown on the farm for the year 1927, specifying the number of acres to be planted in corn and cotton for the payment of the rent and supplies.

Appellant brought suit for the possession of the chattels included in his mortgage in order to foreclose same, alleging there was a balance due from Thompson under the mortgage of $15,858.74, with interest upon the note given for rent and supplies. Appellant advertised the property taken under the writ of replevin, and sold it as appraised under the power in the mortgage for $5,238.90. He brought replevin against Farnsworth Evans Company, appellee, to recover 109 bales of cotton raised on his plantation by Thompson and alleged to have been sold by Thompson without his consent to said company, and that he was entitled to possession thereof under his mortgage.

Thompson first filed a plea in abatement, alleging that he had made a new contract with appellant for the rent of the farm for the year 1928, and on payment of $2,800 on his indebtedness appellant had agreed to extend the time for collection of the balance due to the end of the said year, and furnish him other supplies necessary for making the crop for that year. He then, without insisting on his plea in abatement, filed an answer and cross-complaint. He denied that he had sold the 109 bales of cotton without the consent of appellant, and alleged that he was authorized by him to make the sale thereof; admitted the execution of the promissory note for $25,000, alleged that he had sold the cotton on the 2d day of October, 1927, with the knowledge and consent of appellant, and paid him $10,000 of the proceeds thereof upon his indebtedness, that he had on the 19th day of December, 1927, paid him the further sum of $2,800, derived from the proceeds of the sale of the 109 bales of cotton replevined, which he alleged was sold with the knowledge and consent of appellant, and that he was entitled to the credit of both amounts on the alleged indebtedness; denied that he had unlawfully taken from appellant's possession and converted to his own use the specified personal property, alleged to be of the value of $10,500; and alleged in other paragraphs of the cross-complaint that he was entitled to certain other amounts for digging ditches, clearing lands, and delivering goods on appellant's order to other persons the loss of money paid share croppers and tenants for accounts due him and expected to be paid in the 1928 season on the farm, damages for loss of rent on lands and also for malicious prosecution.

A demurrer was sustained to each paragraph of the cross-complaint, except 3, 4, and 5. Appellant denied the allegations of the plea in abatement, or that he had agreed to rent the place to Thompson for the year 1928 and to extend the time for payment of his indebtedness. Answering the cross-complaint, he denied that the cotton was sold to appellee with his consent, and that he was paid $2,800 from the proceeds of the sale by Thompson; admitted the receipt of certain amounts of money for the sale of cotton, $10,000 of which was credited upon the indebtedness, the remainder being given to Thompson for use in gathering the crop; admitted receiving the $2,800, but denied that it was derived from the sale of any cotton made by Thompson with his consent, and that he had any knowledge or information of the source from which Thompson had received the money and offered to return it to the person entitled thereto; denied taking any of the chattels and converting them to his own use, and that they were of the value claimed; alleged that they were all included in the mortgage, the conditions of which were breached by Thompson, and that an action of replevin had been brought for their possession for foreclosure of the mortgage, that at the sale made pursuant thereto the property sold for $5,078.44, to which Thompson was entitled to credit, except $70 expenses in making the sale; denied any indebtedness to Thompson under any other of the paragraphs of the cross-complaint; prayed judgment against Thompson for the amount due under the mortgage, less the credits allowed, with interest from the maturity of the indebtedness.

The cotton company denied the allegations made against them that the sale was made of the cotton by Thompson without the knowledge or consent of appellant, and alleged that they were innocent purchasers thereof.

The testimony is in conflict as to any agreement made by appellant to lease the plantation to Thompson for the year 1928, or extend the time for payment of the balance due on the indebtedness of the...