Griffith v. Gillum

• Decision Date: 08 May 1888
• Citation: 31 Mo.App. 33
• Parties: BOONE A. GRIFFITH, Plaintiff in Error, v. GEORGE A. GILLUM, Defendant in Error.
• Court: Missouri Court of Appeals

31 Mo.App. 33

BOONE A. GRIFFITH, Plaintiff in Error, v. GEORGE A. GILLUM, Defendant in Error.

Court of Appeals of Missouri, St. Louis.

May 8, 1888

ERROR to the Louisiana Court of Common Pleas, HON. E. M. HUGHES Judge.

Affirmed.

I. C DEMPSEY and W. H. BIGGS, for the plaintiff in error: The papers and judgment, in the case of Boone A. Griffith vs. Gordon A. Thorp, was competent, for the purpose of establishing the amount due from Thorp to plaintiff as rent for plaintiff's farm for 1886, and that the same had not been paid. The testimony introduced by defendant tending to show that he had permitted Thorp, his tenant, to sell the crops grown upon his farm for several years previous to 1886 should have been excluded. It had no tendency to prove that plaintiff had waived his lien on the crop for 1886. It was clearly prejudicial to plaintiff's case, and was calculated to mislead the jury. Faulkner v. Harding, 9 Mo.App. 12. The theory of defendant that if plaintiff gave Thorp permission to sell the wheat and that plaintiff agreed to waive his lien thereon, provided Thorp would sell the wheat, and that, by virtue of this agreement, plaintiff lost his lien, cannot (we think) be sustained. The only consideration shown for this agreement on part of plaintiff was the undertaking on the part of Thorp to sell the wheat. Thorp, in this, assumed no new obligation, nor did he acquire any new right not before possessed. Thorp could sell the wheat and pass a good title to the purchaser, provided the plaintiff received the purchase money. Haselton v. Ausherman, 87 Mo. 410. It was Thorp's duty, under the law, to take proper care of the wheat, and it was also his duty and legal right to dispose of the same in a way not prejudicial to plaintiff's interests. All the purchaser would have to do in order to protect his title to the wheat would have been to see to the proper application of the purchase money. The plaintiff had no title whatever to the property. Neither had he the right to the possession. Sheble v. Curat, 56 Mo. 437. Plaintiff had a legal right or lien on the wheat, and before defendant can escape liability in this case, he must not only show that plaintiff actually agreed to release the wheat from his lien for his rent, but he must also predicate this agreement on a valuable consideration. Haselton v. Ausherman, 87 Mo. 410. What did Thorp agree to do? He agreed to sell the wheat. This he was bound to do outside of this promise. Farringdon v. Ballard, 40 Barb. 512. And the further promise that he (Thorp) would pay the money to plaintiff does not alter the case. This, also, he was legally bound to do, to the extent of that year's rent; and as the wheat only brought three hundred and eighty dollars, and the rent due plaintiff was five hundred dollars, this would furnish no consideration upon which to base the contract. There must not only be a consideration for an agreement to waive a lien, but the intention to waive it must be clearly shown by the evidence. Muench v. Bank, 11 Mo.App. 144. The court permitted defendant to show that, in 1886, Thorp was indebted to him, and that defendant (who was Thorp's security) paid a part of the debt. The defendant's counsel stated in the presence of the jury that his object in offering the testimony was to show that defendant used the money arising from the sale of the wheat in paying Thorp's debts. This was clearly error. Sanders v. Orlhauson, 51 Mo. 163; Knox v. Hurst, 18 Mo. 243.

D. A. BALL, for the defendant in error: The court did not commit an error in refusing to allow plaintiff to read in evidence the papers and judgment in the case of Griffith v. Thorp. Gillum, the defendant in this case, was no party to that suit, therefore, could not be bound by said papers or judgment. If the defendant Gillum knew of the custom and manner of dealing, handling, disposing, and selling of the crops between plaintiff and Thorp, and he certainly did from the testimony, then the evidence was competent. The evidence was competent as tending to prove a waiver of plaintiff's lien, coupled with his dealing, acts, etc., in 1886. Hanley v. Ins. Co., 4 Mo.App. 253; Horn v. Peteler, 16 Mo.App. 438. The third error complained of is, that the permission given by plaintiff to Thorp to sell the wheat and the acceptance of the note, etc., is no waiver of the lien for the reason that there was no consideration. This certainly cannot be the law, when the rights of third parties intervene as in this case. The facts were known by defendant, and plaintiff by his acts, as the testimony in the case proves, waived his lien on the wheat, and he is now estopped from claiming the amount of the wheat of defendant. Hanley v. Ins. Co., 4 Mo.App. 253; Horn v. Peteler, 16 Mo.App. 438; Moores v. Martin, 23 Mo.App. 657. It may be true that plaintiff Griffith had no right to the possession of the crop raised by Thorp before the rent was due, yet no one will contend that after it became due that he did not have the right to take it by law. Rev. Stat., 1879, sec. 3091; Chamberlain v. Heard, 22 Mo.App. 416. The real question is, did the plaintiff waive his lien on the crop of wheat raised in 1886? The facts as substantially proven by defendant were, that Thorp had rented the land of plaintiff for five years; that after the wheat had been threshed in 1886 it remained on the ground where threshed for six weeks, and while there on the ground plaintiff and Thorp, his tenant, had a settlement, and plaintiff accepted Thorp's note for the rent due for 1886, together with all back rent, in all about twelve hundred dollars, and gave Thorp permission to sell and dispose of the crop. These facts defendant knew, and relying upon them, he, as he had a right to do, took the wheat away and received the money for it. Several months after this plaintiff institutes this suit. We, therefore, hold that plaintiff waived his lien in so far as this defendant is concerned. Garnhardt v. Finney, 40 Mo. 449; Milton v. Smith, 65 Mo. 315; Williams v. Porter, 51 Mo. 441.

OPINION

THOMPSON J.

The plaintiff rented to one Thorp a farm for the year 1886 for the annual rental of five hundred dollars, to be paid on the first of August of that year. Thorp had been the tenant of the farm for several previous years, and on the first of August, 1886, owed the plaintiff, on account of rent for previous years, about seven hundred dollars. About that time Thorp, without paying the rent for the year 1886, turned over to this defendant, who was his brother-in-law, most of the wheat which he had grown upon the place in the season of 1886, which the defendant sold for three hundred and eighty dollars. Thorp did this for the purpose of discharging a liability which he had incurred in favor of the defendant in an amount exceeding four hundred dollars. Two hundred dollars of this liability was for money loaned by the defendant to Thorp, for which the defendant had taken a mortgage upon this very crop, with the knowledge of the plaintiff, as the defendant's evidence tended to show. The defendant's evidence tended to show that, when Thorp turned over the wheat to the defendant, the plaintiff had given him (Thorp) permission to sell the same. Shortly after Thorp turned over the...