Bradbury v. McLendon

Citation119 Miss. 210,80 So. 633
Decision Date17 February 1919
Docket Number20513
CourtUnited States State Supreme Court of Mississippi
PartiesBRADBURY v. MCLENDON

Division B

1. APPEAL AND ERROR. Review. Finding of chancellor.

The findings of a chancellor based on the testimony of a single witness who testified from his personal knowledge will be sustained on appeal, though in direct and necessary conflict with the testimony of two other witnesses.

2. LANDLORD AND TENANT. Advances by landlord. Evidence.

The findings of a chancellor will not be sustained on appeal where based on the mere opinion of a witness as to the amount of cotton seed it would take to plant the leased premises while two other witnesses testified as to the actual amount furnished by the landlord for such purposes.

3 PARTNERSHIP. Liability of loan.

Where a member of a partnership authorized to do so borrows money for the partnership, it will be bound, though the other two partners did not know of such borrowing.

4 PARTNERSHIP. Power of partner. Changing purchase to hiring.

A contract for the sale and purchase of property can be changed into a contract for rental of the same where the purchase money note is surrendered and the property re-delivered to the seller.

5. LANDLORD AND TENANT. Accounting. Evidence.

Where a member of a firm of tenants testified that the landlord was authorized to sell a bale of cotton at the price shown in the landlord's account and the landlord testified that he did so sell it and that this was a fair price, the chancellor was not authorized to find for the other tenant that it was worth more, where such finding was based on the testimony of a broker, merely that it was worth a certain amount more.

6. FRAUDS. Statute of. Performance of contract. Surrender of lease.

Where the writing evidencing a lease of land has been surrendered and possession of the rented premises delivered up by the managing partners of the firm of tenants, and possession taken by the landlord, and other considerations passed, in such case, the surrender of the lease was a completed, executed contract, unaffected by the statute of frauds, though such lease, at the time of the surrender, had more than a year to run.

HON. E. N. THOMAS, Chancellor.

APPEAL from the chancery court of Sunflower county, HON. E. N. THOMAS, Chancellor.

Suit by J. L. McLendon against J. E. Bradbury. From a decree for complainant, defendant appeals.

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

Judgment reversed.

H. C. Mounger and W. E. Hobbs, for appellant.

J. B. Guthrie, for appellee.

OPINION

ETHRIDGE, J.

O. H. Kennedy and J. L. McLendon in January, 1916, leased a certain tract of land from J. E. Bradbury for a period of five years and entered into possession of said lease. At the time of the lease it was understood that Kennedy and McLendon would furnish themselves, but after moving upon the place it appeared they were not able so to do, and approached Bradbury to get him to supply them. It was stated by both Kennedy and McLendon that they were partners, and that Kennedy was to manage the financial transactions of said partnership, and that McLendon was to oversee the plantation, and have charge and management of the plantation in directing plantation activities. Kennedy applied to Bradbury for various articles, including money to be furnished them. When the articles and cash furnished amounted to two thousand dollars Bradbury applied to Kennedy to give him a note for the amount, which Kennedy did, but did not sign the firm name to the note, signing his individual name. Later Kennedy and McLendon applied to a bank for a loan of money, offering to execute a deed of trust on the crops grown on the place. The bank refused to loan the money on this security unless Bradbury would indorse the note, which Bradbury did. The first note executed to the bank was for two thousand, seven hundred dollars and subsequently a second note was given, also indorsed by Bradbury, for one thousand dollars. The lease contract called for rent, for the first year one thousand, five hundred dollars and for each subsequent year of lease one thousand, eight hundred dollars and notes were given Bradbury for these amounts.

In the fall of the year following the execution of the lease Kennedy sold certain cotton grown upon the place and deposited the proceeds in a bank at Gunnison, Miss. His partner, McLendon, notified the bank from which the loan was obtained of this transaction by Kennedy, and requested the bank to take steps to recover the property sold, or its proceeds, to be applied on the deed of trust given the bank. The cashier of the bank notified Mr. Bradbury and told Mr. Bradbury that the bank was looking to Bradbury for the payment of these sums, and requested Bradbury to take steps necessary to protect the interests of the bank and of himself as indorser of said note. Thereupon Bradbury took charge under the deed of trust and obtained the money deposited at Gunnison, with a small exception and took charge of the produce grown upon the place and sold the same, applying the proceeds to the payment of the deed of trust, and also to his account, Among the items furnished to Kennedy and McLendon by Bradbury was certain live stock which was sold to them at and for the sum of nine hundred dollars. After Bradbury took charge of the property, Kennedy, the financial agent of the firm of Kennedy & McLendon, approached Bradbury for a settlement of affairs between them, proposing to give up the lease and to return the live stock furnished, and to pay for the use of the live stock twenty dollars per head for the mules and twenty-five dollars for a horse so furnished. stating to Bradbury that McLendon had authorized him to get out of the lease as best he could; Kennedy stating that McLendon stated that he could not be made to pay because he had no property. Bradbury agreed to the proposition and surrendered to Kennedy the notes taken for the stock, etc., and Kennedy turned over to Bradbury the lease contract that Bradbury had executed to the firm of Kennedy & McLendon, and Kennedy moved off the place and Bradbury took charge, and made new contracts for subsequent years. In May, 1917, Kennedy filed a bill in the chancery court praying for an accounting and for a cancellation of deeds of trust, and also claimed, upon the theory that he had not surrendered the lease, that he was entitled to one-half of the increased amount derived from the land by Bradbury under new leases. Bradbury filed an answer and cross-bill setting forth an account of the crops sold, the amount furnished by him to Kennedy & McLendon, and amounts expended by him in having the crops gathered, sold, etc.

Kennedy was introduced as a witness, and testified that the account made by Bradbury was true and correct, and that he, as financial agent of the firm, had authorized Bradbury to sell the produce grown upon the place, and that he had surrendered to Bradbury the written lease and the stock furnished and the produce grown in satisfaction of their demands and moved away. Bradbury also testified to the same effect and to the correctness of the account furnished. McLendon testified, admitting that Kennedy was authorized to manage the financial part of the...

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9 cases
  • Stirling v. Logue
    • United States
    • United States State Supreme Court of Mississippi
    • September 23, 1929
    ......v. Dinwiddie, 117 Miss. 103, 77. So. 906; (1919) Glover v. Falls, 82 So. 4;. Gillis v. Smith, 114 Miss. 665, 75 So. 451;. Bradbury v. McLendon, 119 Miss. 210, 80 So. 633;. Aldridge v. Bogue Phalia Drainage Dist., 106 Miss. 626, 64 So. 377; Brooks-Scanlon Co. v. Stogner, ......
  • Nubby v. Scott
    • United States
    • United States State Supreme Court of Mississippi
    • September 11, 1939
    ...107 Miss. 750; Steede v. Ferrer, 150 Miss. 711; Leavenworth v. Hunter, 150 Miss. 750; Stevenson v. Swilley, 156 Miss. 552; Bradbury v. McLendon, 119 Miss. 210; Bacot v. Holloway, 140 Miss. 120; Quine Wolcott, 165 Miss. 325; Louis Werner Sawmill Co. v. Northcutt, 161 Miss. 441; Hibernia Bank......
  • Fant v. Fant
    • United States
    • United States State Supreme Court of Mississippi
    • June 10, 1935
    ...... Under the rule settled by more than one hundred cases, by. actual count, that finding cannot be disturbed. . . Bradbury. v. McLendon, 119 Miss. 210, 80 So. 633; Jackson v. Mims, 123 Miss. 78, 85 So. 124; Fidelity v. Cross, 131 Miss. 632, 95 So. 631; Bacot v. ......
  • Eagle Lumber & Supply Co. v. De Weese
    • United States
    • United States State Supreme Court of Mississippi
    • June 15, 1931
    ......344, 155 Miss. 242. . . This. trust deed was validly cancelled by a partner in the. business. . . Bradbury. v. McLendon, 80 So. 633, 119 Miss. 210; Parberry v. Johnson, 51 Miss. 291, at 296; 47 C. J. 860. . . Said. trust deed, having ......
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