Carberry v. Howell
| Citation | 75 So. 383,114 Miss. 549 |
| Decision Date | 28 May 1917 |
| Docket Number | 19350 |
| Court | Mississippi Supreme Court |
| Parties | CARBERRY v. HOWELL |
APPEAL from the circuit court of Monroe county, HON. CLAUDE CLAYTON Judge.
Suit by Mrs. James Carberry, administratrix, against J. A. Howell. From a judgment for defendant, plaintiff appeals.
The facts are fully stated in the opinion of the court.
Affirmed.
Paine & Paine, for appellant.
As to the application of the thirty-nine dollar payment. If appellant's contention is correct and the payment was rightfully made upon the supply note, then there can be no doubt but that at the time the suit was instituted that there was a balance due on rent and the case should have gone to the jury as it is admitted that appellee got the tenant's cotton with notice that there was a balance due on the rent note.
We therefore respectfully submit that the credit was placed on the right note and that Skelton stood by and saw it done and made no objection and that he can't make objection at this late date in order to protect the appellee.
As to whether or not the fifty-four dollar note was supplies. If the fifty-four dollar note was for supplies then of course Carberry had a lien on this cotton that was converted by the appellee and the court should have permitted the case to go to the jury on this proposition; regardless as to how the court may think the credit of thirty-nine dollars should have been placed.
Mrs Carberry on page 12 testified that the fifty-four dollars was for supplies because she says Mr. Carberry, his landlord, furnished him the money. See record page 39. It is true that Brown actually furnished the money to Carberry but it is also true that Carberry had to execute the note and borrow the money himself and Skelton admitted that he owed the money to Carberry. Carberry didn't have that much cash on hand and he was compelled to borrow it from the bank to furnish his tenant, Skelton. And we submit that it makes no difference as to how Carberry got the money or from whom he got it, provided he advanced the money to Skelton as supplies and that Skelton owed the money to Carberry; and it can make no difference that the tenant also executed the note with Carberry, as in fact Carberry furnished the money to the tenant and paid the note off himself and it was transferred to him long before the suit was instituted and before the expiration of 1914 and the tenant recognized that he owed the balance to Mr. Carberry. See Ellis v. Jones, Agt., 70 Miss. 60.
We respectfully submit that the case should have been permitted to have gone to the jury and the peremptory instruction should not have been granted; under the law as announced in the case of Railroad Co. v. H. K. Boehms, 70 Miss. 11, McGaughn v. Young, 37 S. R. 839.
From the latter case we quote the following from the first syllabi: "A peremptory instruction is proper only where, admitting all the facts in evidence and every inference from them they fail to maintain the issue; and, upon a review of the giving of a peremptory instruction, the losing party is entitled to have all of the facts considered in his favor as true."
This court has time and again sanctioned and reaffirmed the law as announced in the two cases ubri supra.
We therefore respectfully submit that the lower court erred in granting the peremptory instruction and that the cause should be reversed and remanded.
D. W. Houston, Sr., & Jr., for appellee.
We contend, that the landlord's lien has been released by a full payment by Skelton to his landlord, Carberry, of all money due for rent and supplies for which a landlord's lien could have been claimed. If it was not released we have argued above it was paid; and that therefore, the cotton received by Howell, or the proceeds thereof, could not be subject to any claim of a landlord's lien, or Howell required to refund to Carberry the proceeds of such cotton.
Counsel in their earnest zeal labor to make this fifty-four dollar note a note for supplies; but the note being made payable to Brown and signed by Skelton with Carberry as surety with the above notation thereon--"For cash this day loaned to R. D. Skelton"--shows conclusively, even leaving out of view the testimony of Mrs. Carberry and Skelton corroborating it, that it was an independent obligation on the part of Skelton, who was primarily liable, with Carberry as his surety, who was only secondarily liable to pay to Brown a specific sum of money; and that therefore this was not such supplies as is contemplated under our landlord's lien statute as would subject the cotton received by Howell, or the proceeds thereof, to the payment of same--as was decided in the case of Ellis v. Jones, 70 Miss. 60.
In that case, the court said on page 63: ...
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