Farmers' Elevator Co. v. Advance Thresher Co.

• Decision Date: 28 October 1916
• Docket Number: (No. 7546.)
• Citation: 189 S.W. 1018
• Parties: FARMERS' ELEVATOR CO. et al. v. ADVANCE THRESHER CO.
• Court: Texas Court of Appeals

189 S.W. 1018

FARMERS' ELEVATOR CO. et al. v. ADVANCE THRESHER CO.

(No. 7546.)

Court of Civil Appeals of Texas. Dallas.

October 28, 1916.

Rehearing Denied December 9, 1916.

Appeal from District Court, Dallas County; W. F. Whitehurst, Judge.

Garnishment proceedings by the Advance Thresher Company against the Farmers' Elevator Company, wherein the garnishee prayed that others be made parties, and all claimants be required to liquidate their claims. From judgment that plaintiff recover of the garnishee the full amount of its liability, and that two of the parties impleaded take nothing as against the garnishee or plaintiff. W. T. Waggoner and Ben Kruse, the impleaded parties, appeal. Judgment affirmed as to Kruse and the garnishee, and reversed as to Waggoner, and the cause remanded.

Glover C. Johnson, of Ft. Worth, and Walter G. Miller, of Dallas, for appellants. Bryan & Bryan, of Houston, and Smoot & Smoot, of Wichita Falls, for appellee.

TALBOT, J.

The Advance Thresher Company, appellee, which had previously obtained a personal judgment against John McDuff and others, caused a writ of garnishment to issue out of the district court of Dallas county, Tex., and served upon the Farmers' Elevator Company at Electra, Tex. The Farmers' Elevator Company, as garnishee, answered, in substance, that on or about June 15, 1914, McDuff sold and delivered to it certain wheat for which it had not yet paid, and that it believed its indebtedness to McDuff to be about $1,750; that after delivery to it of said wheat, and after service of the writ of garnishment, W. T. Waggoner served notice upon it that said wheat had been raised on a farm belonging to him, that McDuff had not paid any part of the rent, and that he would expect garnishee to withhold the rents due him. The said garnishee also set up that one Ben Kruse had served notice upon it, after service of the writ, that he had threshed the wheat grown on W. T. Waggoner's land, and claimed a lien on said wheat for threshing same at the rate of 12 cents per bushel; that it held said sum subject to the order of the court; prays that McDuff, Waggoner, and Kruse be made parties to the suit; and prayed that all claimants be required to litigate their claims to said fund. McDuff did not answer. Waggoner answered, to the effect that he had rented a farm to McDuff for the season of 1914; that all of the wheat raised by McDuff during said season had been raised on said farm, and had aggregated approximately 3,500 bushels; that said farm had been rented to McDuff on an express contract that he (Waggoner) should receive one-third of the grain raised thereupon as rent; that if McDuff had sold any grain to the Farmers' Elevator Company, same had been raised on Waggoner's farm under the aforesaid rental contract; that he had not authorized McDuff to sell any part of his (Waggoner's) undivided one-third of said grain; that said elevator company did not acquire any title to Waggoner's part of said grain, and that if it had purchased same, it was liable to Waggoner for the value thereof, for which he prayed judgment in the sum of $1,200. Kruse answered that on or about July 8, 1914, he was employed by McDuff to thresh his grain crop of oats, barley, and wheat; that he threshed for McDuff, 3,039 bushels of wheat at the agreed price of 12 cents per bushel, 835 bushels of barley at 8 cents, and 1,000 bushels of oats at 6 cents, totaling $491.38; that McDuff owed him for said threshing and had paid no portion thereof, but that Waggoner had paid him one-third of said amount, $163.79, same being for Waggoner's third as landlord of the farm upon which said grain was raised. Kruse alleged that McDuff had delivered approximately 2,550 bushels of said wheat to the elevator company on July 13, 1914, and that on the next day he (Kruse) notified the elevator company that he claimed a lien on the grain delivered to it for said threshing. He prayed for judgment against the elevator company for the balance due on his account for threshing of $327.59. Plaintiff joined issue on the facts alleged by Waggoner and Kruse by its supplemental petition. On the issues thus joined the case was heard by the court without a jury, and judgment was rendered on February 4, 1915, that plaintiff recover of garnishee the sum of $1,811.81, the full amount of garnishee's liability, and that the defendants Waggoner and Kruse take nothing as against the defendant elevator company or plaintiff. In due time Waggoner, Kruse, and garnishee filed their respective motions for new trial, which were all overruled, and Waggoner and Kruse excepted and gave notice of appeal.

The appellant Waggoner assigns the action of the trial court in rendering judgment in favor of the appellee Advance Thresher Company for the full amount the garnishee, Farmers' Elevator Company, had agreed to pay McDuff for the wheat purchased from him and grown on appellant's farm, and in denying appellant any recovery against the said garnishee, was error. The proposition asserted under the assignment is as follows:

"Where a portion of a crop, raised on rented premises, belonging to the landlord, or upon which he has a landlord's lien, is purchased without the consent or authority of the landlord within 30 days from its removal from the rented premises, same constitutes a conversion for which the purchaser is liable to the landlord for the value of the portion converted."

This is a correct proposition of law. The lien is given by statute, and the right of the landlord to recover against a purchaser of the crop who, under the circumstances and within the time stated, receives and converts the same is well established by the decisions of our courts. The right of recovery in such a case is to the extent of the value of the crop converted if the amount of the rent due is equal to or exceeds such value, or, if less, then for such sum as may be necessary to satisfy the claim for rent. The rule is announced by the Supreme Court of Texas (Zapp v. Johnson, 87 Tex. 641, 30 S. W. 861) in the following language:

"One who purchases agricultural products produced upon rented premises, or other property liable to the landlord's lien for rent, within the time that the lien continues thereon, and converts the same to his own use, may be sued by the landlord for the value of the property, if it does not exceed the rent due, and, if it should exceed the rent, then for the amount of the rent" (citing Boydston v. Morris, 71 Tex. 697, 10 S. W. 331; Prettyman v. Unland, 77 Ill. 206; Thornton v. Strauss & Steinhardt, 79 Ala. 164; Holden...