Daves v. Lufkin

• Decision Date: 18 December 1930
• Docket Number: 1 Div. 618.
• Parties: DAVES v. LUFKIN ET AL.
• Court: Alabama Supreme Court

131 So. 438

222 Ala. 171

DAVES v. LUFKIN ET AL.

1 Div. 618.

Supreme Court of Alabama

December 18, 1930

Appeal from Circuit Court, Mobile County; Alex. T. Howard, Judge.

Action by Sewell Lufkin and W. T. Robinson against T. B. Daves individually, and doing business as the Alabama Fruit &amp Produce Company. From a judgment for plaintiffs, defendant appeals.

Affirmed.

See also 220 Ala. 443, 125 So. 811.

Inge Stallworth & Inge, of Mobile, for appellant.

D. R Coley, Jr., and Gordon, Edington & Leigh, all of Mobile, for appellees.

BOULDIN J.

In 1928, Lufkin & Robinson entered into a joint enterprise with C. H. Millsap of Atmore, Ala., to grow potatoes for the market. Millsap furnished the seed potatoes as the equivalent of the fertilizer furnished by Lufkin & Robinson. For the additional contributions of Lufkin & Robinson in furnishing the land and labor to grow, gather and ship the product, they were to receive $1,750 out of the first proceeds.

At market time it was arranged for Millsap to do the marketing. Accordingly, bills of lading for six cars were made out to Millsap, as consignee, destination, Nashville, Tenn. He, in turn, assigned them to Alabama Fruit & Produce Company of Mobile, the tradename under which T. B. Daves was doing business.

Shipments of this sort were reconsigned en route as market conditions suggested. Daves accordingly handled the shipments and received the net proceeds $1,468.68. Refusing to pay over the same to Lufkin & Robinson after being advised of the nature of their claim, the present suit was brought for conversion.

Defendant's side of the case is this:

On February 1, 1928, Daves, in the name of Alabama Fish & Oyster Company, made a contract with Millsap to grow potatoes, or have them grown for the market. Daves was to furnish Millsap nine cars of seed potatoes, 5,400 bushels at $2.20 per bushel, taking a note for the price. Millsap agreed to furnish and use not less than 1500 pounds of fertilizer per acre, and that the potatoes be planted "on land on which he will have a full release from landowner stating that said crop of potatoes will not be held or molested for any reason whatever." At market time Millsap was to deliver the potatoes to Daves on board cars, Daves to market same on a commission basis. The proceeds, less commissions, were to be applied to payment of all indebtedness from Millsap to Daves and balance paid over to Millsap.

At shipping time Millsap turned in the bills of lading for the Lufkin & Robinson potatoes along with a large number of other shipments moving at the same time.

Lufkin & Robinson knew nothing of the contractual relations between Daves and Millsap at the time they contracted with Millsap nor until after the shipment, when they sought to get returns on their potatoes.

Neither had Daves any knowledge of the contract between Millsap and Lufkin & Robinson until about the time of last shipment of their potatoes. Daves applied the proceeds on Millsap's account, leaving a large balance still unpaid. Lufkin & Robinson have only gotten $250 out of the crop, leaving $1,500 still due them out of the first proceeds.

Probably it should be said for Millsap that he shipped some 60 cars of potatoes, but due to market conditions, the entire proceeds did not equal the cost of the seed potatoes and fertilizers he bought later from Daves.

There is no material controversy as to the facts. Was judgment properly rendered for plaintiffs, Lufkin & Robinson?

They were tenants in common with Millsap in the ownership of the potatoes.

One tenant in common may sue the other, or any one acting for him, in trover for the conversion of his interest in the property by a disposition of the property for his exclusive benefit; or if he sells the property by agreement, the proceeds to be shared in a given manner, and such proceeds are converted to his exclusive use, the injured party may waive the tort and sue in assumpsit.

Daves having received and still retaining the proceeds is liable to plaintiffs under the count for money had and received, the entire...