Ellis, McKinnon & Brown v. Hopps

• Decision Date: 25 June 1923
• Docket Number: 14079.
• Citation: 118 S.E. 583,30 Ga.App. 453
• Parties: ELLIS, MCKINNON & BROWN v. HOPPS.
• Court: Georgia Court of Appeals

118 S.E. 583

30 Ga.App. 453

ELLIS, MCKINNON & BROWN v. HOPPS.

No. 14079.

Court of Appeals of Georgia, Second Division

June 25, 1923

Syllabus by the Court.

This was an action of bail trover and the verdict was as follows "We, the jury, find in favor of the defendant, giving defendant one-half hogs raised, and half of all the crop except corn that he is to get two-thirds. This 25th day of August, 1922." The plaintiffs excepted to the overruling of their motion for a new trial. The plaintiffs alleged that the relation between the original parties was that of landlord and cropper. The defendant denied this and contended that the relation was one of landlord and tenant. The same insistence was made by his trustee in bankruptcy, the trustee having been made a party defendant in lieu of the original defendant, who after answering the suit was adjudged a bankrupt. Under the evidence a verdict for either party upon this issue would have been authorized. See, in this connection, Smart v. Hill, 29 Ga.App. 400, 116 S.E 66; Souter v. Cravy, 29 Ga.App. 557 (1), 116 S.E 231. It was undisputed that under the agreement each of the parties was to receive one-half of the crops, whether the original defendant was a cropper or a tenant. It appears in the record that neither party replevied the property, and that all but the corn was sold under the provisions of section 5153 of the Civil Code of 1910, and the proceeds held by the sheriff pending the trial. Held:

Regardless of whether the jury in any event would have been authorized to attempt the division of the property, the verdict is contrary to law because of the fact of the sale.

Where property, after seizure in a bail trover action, has been sold by the sheriff under section 5153 of the Civil Code "the plaintiff, in case of recovery, shall only be entitled to a money verdict for the amount of the proceeds of such sale, together with hire, or interest from the date of conversion to the date of seizure, if the jury shall so find." Smith v. Commercial Credit Co., 28 Ga.App. 403 (2,3), 111 S.E. 821, and cases cited. If the relation was one of landlord and tenant, the plaintiffs, in the absence of a special contract providing otherwise, would have only a lien, and their action in trover would not be maintainable. In that event the verdict should have been generally in favor of the defendant. Whatever the verdict may import, if anything, as to the jury's finding upon the question of the relation of the parties, it cannot stand.

"Where a landlord seeks by bail trover against his cropper to recover property, the title to which the plaintiff holds merely as security for supplies furnished, or other debt, and he elects to take a money verdict, he cannot recover more than the amount of the debt for which the property stands as security." Way v. Bailey, 18 Ga.App. 57, 88 S.E. 799. If upon another trial the jury should find for the plaintiffs, any unpaid advances made by the plaintiffs to aid in making the particular crops should be taken into account, and the rule above quoted will be applicable, if the advances shall be less than the defendant's proper share of the proceeds of the sale, with interest or hire as provided in section 5153, but in no event can the plaintiff recover more than the maximum allowable under the rule stated in paragraph 2.

The foregoing does not apply to the corn, which appears by the record not to have been included in the sale. The cropper or tenant had delivered to the plaintiffs one-third of the corn, and the plaintiffs sued only for a quantity representing the difference between one-third and one-half, contending that as to the quantity sued for the defendant had no interest. If the plaintiff should recover and elect to take a money verdict for the corn, the recovery therefor may be added to the sum recoverable under the rulings of the preceding paragraph, and included in the verdict; but the verdict as to the corn should be for the specific property, if the plaintiffs so elect.

There can be no recovery for the corn, if it shall appear that it had not been segregated from the other portion of the corn withheld by the defendant; the plaintiffs not suing for the whole. Spikes v. Sassnett, 19 Ga.App. 479 (1), 91 S.E. 789.

The defendant contended that the plaintiff contracted definitely to furnish 300 pounds of fertilizer per acre for the fertilization of the corn, and breached the agreement by furnishing none. On account of this alleged breach the defendant made the further contention that the plaintiffs were not entitled to half of the corn, as by the agreement, but only to a third. In upholding this contention the verdict was erroneous. " 'In an action to recover specific chattels, no counterclaim is possible, unless, perhaps, equitable relief may be awarded under some very exceptional circumstances.' Pomeroy, Code Remedies, § 767; Harven v. Long, 110 Ga. 392, 399 (36 S.E. 100)." Youngblood v. Armour Fertilizer Works, 23 Ga.App. 731 (1), 99 S.E. 314; Bell v. Ober & Sons, 111 Ga. 668 (3), 36 S.E. 904.

But since, in view of the sale, the plaintiffs in the next trial must elect a money verdict as to a part of the crops, the amount of their recovery, if the plaintiffs prevail may be offset by any damage resulting to the opposite party by reason of any breach of the contract by the plaintiffs, if the breach be established and does not appear to have been waived. See Holmes v. Langston, 110 Ga. 861 (3), 36 S.E. 251; Witt v. Nesar, 145 Ga. 674 (3), 89 S.E. 747; Cowart v. Dees, 7 Ga.App. 601 (3), 67 S.E. 705; Way v. Bailey, 18 Ga.App. 57, 88 S.E. 799.

The foregoing rulings, referring only to the crops, assume the relation created by the contract to that of landlord and cropper. If the jury find that the relation was that of landlord and tenant, the verdict should be generally for the defendant.

Sections 3705, 3706, and 3707 of the Civil Code define the relations and rights of landlord and cropper only as to crops; crops are the product of the soil and do not include the increase of live stock. Where a landlord furnishes to a cropper live stock, the increase of which is to be raised by the latter on shares and to be divided equally between the parties, their relation with reference thereto is that of owners or tenants in common, and not that of landlord and cropper. Civil Code 1910, §§ 3723, 3724. The parties might by special contract agree that their respective rights regarding the property were to be identical with those obtaining in the case of crops produced under the relation of landlord and cropper, but this could not result merely by reason of the application of the above-mentioned statutes to the facts of this case.

The plaintiff's evidence would have authorized the inference of such a special contract, but the petition alleges only an agreement to divide in kind, and makes a case distinguishable from Padgett v. Ford, 117 Ga. 508 (2), 43 S.E. 1002 and cases there cited, wherein the labor of the employed was to be applied to personalty and to be compensated by a division of the profits. In the present form of the petition the plaintiff was not entitled to recover on account of the hogs, either in money or specifics. Considered as a whole, the petition fails either to show that the title to the entire property was in the plaintiffs, or to allege any facts sufficient to authorize an action of trover by one tenant in common against another. See Hall v. Page, 4 Ga. 428 (1), 48 Am.Dec. 235; Starnes v. Quin, 6 Ga. 84 (3); Roddy v. Cox, 29 Ga. 298...